B
O
C
OVERSTAYING VISA & ENTRY WITHOUT
INSPECTION:
What are the consequences of overstaying one's
nonimmigrant status?
Individuals who have overstayed their nonimmigrant status are
not eligible to change or extend their status from within the U.S.
In addition, except for immediate relatives, such individuals are
ineligible to adjust status to lawful permanent residence (except
certain individuals who were "grandfathered-in" under INA § 245
(i) which allows for adjustment with the payment of $1000
penalty). There are serious consequences for overstaying
nonimmigrant status.
(1). An overstay of any duration results in a requirement that
from that day forward these individuals must return to their home
country in order to obtain visas of any kind, therefore, barring
them from third country processing.
(2). An overstay of more than 180 days bars individuals from re-
entering the U.S. for a 3 years. An overstay of more than one
year bars individuals for a period of 10 years. Individuals in J-1
or F-1 status with I-94s that are designated "D/S" are not
impacted by these consequences unless USCIS has made a
separate
determination that they have overstayed their status.
***NOTE: these bars are not triggered until an individual has
departed the U.S.
I entered the U.S. without a visa (or without inspection),
am I eligible to obtain residency in U.S.? What options do I
have to legalize myself?
There are generally 3 options through which people are able to
obtain legal status in the U.S.: 1). An employment petition; 2). A
petition filed by an immediate family member; or 3). A special
petition such as political asylum or cancellation of removal
(deportation). In general, people will fall in one of 4 categories of
eligibility:
(1). People who entered the U.S. with a visa and are eligible to
get their residency in the U.S. through a family petition (even if
the visa has expired or the visa was not valid).
(2). People who entered the U.S. without inspection or visa and
are eligible to obtain residency through family or employment
because they are 245i eligible (see explanation below of who is
245i eligible).
(3). People who came into the U.S. with a valid U.S. visa, with a
current, un-expired I-94 (small white card issued at the time you
entered the U.S., which tells you how long you are allowed to
remain in the U.S.).
These persons are eligible to apply for any other category of
visa. The visa approval will depend
on the person meeting the specific qualifications required by the
particular visa.
(4). Persons who came into the U.S. without inspection or
persons that came with a visa and the visa has expired, may be
eligible to apply for residency in the U.S., however, their
adjustment of status petition may require a waiver.
A waiver is a “pardon” from the U.S. government that says that
even though you have violated an immigration regulation you will
be granted a green card under special circumstances. These
waivers are generally granted to individuals with special family
connections to the U.S. These waivers are most commonly
issued at a U.S. consulate abroad.
Who is 245i eligible to adjust status?
It means that you are eligible under the 245i provision to adjust
your legal status by paying a penalty fee, if you meet the
following conditions:
filed on or before April 30, 2001, you may still be 245i eligible
under certain circumstances, and may apply again for
residency through another family or employment petition.
What is a derivative beneficiary?
A derivative beneficiary is a spouse or child of an individual who
was named as the primary or main beneficiary of a visa
application or residency petition, if the type of petition allows
family
members to be included. For example:
INSPECTION:
What are the consequences of overstaying one's
nonimmigrant status?
Individuals who have overstayed their nonimmigrant status are
not eligible to change or extend their status from within the U.S.
In addition, except for immediate relatives, such individuals are
ineligible to adjust status to lawful permanent residence (except
certain individuals who were "grandfathered-in" under INA § 245
(i) which allows for adjustment with the payment of $1000
penalty). There are serious consequences for overstaying
nonimmigrant status.
(1). An overstay of any duration results in a requirement that
from that day forward these individuals must return to their home
country in order to obtain visas of any kind, therefore, barring
them from third country processing.
(2). An overstay of more than 180 days bars individuals from re-
entering the U.S. for a 3 years. An overstay of more than one
year bars individuals for a period of 10 years. Individuals in J-1
or F-1 status with I-94s that are designated "D/S" are not
impacted by these consequences unless USCIS has made a
separate
determination that they have overstayed their status.
***NOTE: these bars are not triggered until an individual has
departed the U.S.
I entered the U.S. without a visa (or without inspection),
am I eligible to obtain residency in U.S.? What options do I
have to legalize myself?
There are generally 3 options through which people are able to
obtain legal status in the U.S.: 1). An employment petition; 2). A
petition filed by an immediate family member; or 3). A special
petition such as political asylum or cancellation of removal
(deportation). In general, people will fall in one of 4 categories of
eligibility:
(1). People who entered the U.S. with a visa and are eligible to
get their residency in the U.S. through a family petition (even if
the visa has expired or the visa was not valid).
(2). People who entered the U.S. without inspection or visa and
are eligible to obtain residency through family or employment
because they are 245i eligible (see explanation below of who is
245i eligible).
(3). People who came into the U.S. with a valid U.S. visa, with a
current, un-expired I-94 (small white card issued at the time you
entered the U.S., which tells you how long you are allowed to
remain in the U.S.).
These persons are eligible to apply for any other category of
visa. The visa approval will depend
on the person meeting the specific qualifications required by the
particular visa.
(4). Persons who came into the U.S. without inspection or
persons that came with a visa and the visa has expired, may be
eligible to apply for residency in the U.S., however, their
adjustment of status petition may require a waiver.
A waiver is a “pardon” from the U.S. government that says that
even though you have violated an immigration regulation you will
be granted a green card under special circumstances. These
waivers are generally granted to individuals with special family
connections to the U.S. These waivers are most commonly
issued at a U.S. consulate abroad.
Who is 245i eligible to adjust status?
It means that you are eligible under the 245i provision to adjust
your legal status by paying a penalty fee, if you meet the
following conditions:
- 1). You must have been present in the U.S. before
December 18, 2000, and
2). You must have filed a family or employment based
residency petition on or before April 30, 2001, or you
must have been the derivative beneficiary of such a
petition.
filed on or before April 30, 2001, you may still be 245i eligible
under certain circumstances, and may apply again for
residency through another family or employment petition.
What is a derivative beneficiary?
A derivative beneficiary is a spouse or child of an individual who
was named as the primary or main beneficiary of a visa
application or residency petition, if the type of petition allows
family
members to be included. For example:
- a). My aunt who is a citizen filed a residency petition for
my mother when I was under the age of 21, this means my
mother’s spouse and I are derivative beneficiaries of that
application.
b). My father’s employer started a petition for my father
when I was under the age of 21, this makes me and my
father’s wife derivative beneficiaries of that petition.
c). My mother marries a U.S. citizen when I was under the
age of 21, I was named as her child in the petition,
however, this type of residency petition does not allow me
to be a
derivative beneficiary. In this case, my stepfather is
required to file a separate residency petition for me, if he
wants to petition for my residency.
BOGLE
OKOYE
CHANG
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Questions: Overstaying Visa & Entry Without Inspection
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