It’s not uncommon for foreign nationals to enter the United States on a temporary non-immigrant visa and for one reason or another, stay past their approved I-94 date.

So what happens after you stay?

Can you apply for permanent residence (green card)?

The answer to this question depends on a number of factors. After a person overstays a non-immigrant visa, he cannot simply apply for another non-immigrant visa or permanent residence, especially if he overstays by 6 months or more.

3-year bar

If a non-immigrant enters the United States with a temporary visa and stays more than 6 months past the expiration of his/her I-94, then he/she will be subject to a 3-year bar of inadmissibility. This simply means that, absent a waiver of inadmissibility, this person will not be allowed to re-enter the U.S. with any visa kind until 3 years from his/her last date of departure.

10-year bar

Same as the 3-year bar, if a non-immigrant enters the United States with a temporary visa and stays more than 1 year past the expiration of his/her I-94, then he/she will be subject to a 10-year bar of inadmissibility.

Waiver of Inadmissibility

So what is this miracle “waiver” that forgives an overstay? A waiver of extreme hardship is attained by claiming that your U.S. citizen or permanent resident relatives (spouse or parents) will suffer extreme hardship due to your removal from the United States. Extreme hardship can be extremely challenging to prove to a relative because it must be more than pure economic hardship. Some examples include: spouse will suffer financially and psychologically from your departure and will not be able to care for children herself; elderly parents can’t care for themselves after your departure and will become a burden on the government, etc.

Overstays of less than 6 months

While you have not triggered any bars of inadmissibility, you are still on the radar for immigration to discretionarily deny future non-immigrant visas due to this overstay. Non-immigrants should always avoid any intentional overstays and depart prior to the expiration of their I-94.

How can I avoid the bars?

We advise all non-immigrants to avoid staying past the expiration of their I-94 absent an approved extension or change of status. It is simpler to depart and return on a later date with an approved visa than face the grave consequences of a three or ten-year bar. If you have any concerns or questions about your status in the United States, our office is here to help. We are located in Miami, FL and can service clients anywhere in the U.S. or internationally. You can reach us by phone at (786) 734-1671 or by email at nadine@navarroimmigration.com.