Visa Overstay and Illegal Presence in the US: Criteria and Penalties


The 1996 Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) passed by the Congress defines the criteria and penalties on individuals who enter the US and stay beyond the permitted period of time. Sections 222(g) and 212(a) (9) (B) are the sections of the Immigration and Nationality Act defining the conditions and penalties involved with visa overstays and unlawful presence of aliens respectively.

The determination of how and when these provisions apply to an individual is a complex process. However, penalties are significant and it is usual for individuals to be charged under these two provisions to consult an immigration attorney. It is also useful to be aware of the general criteria and consequences of unlawful entry/stays in the US.

INA Section 222(G) Visa Overstays

The provision for visa overstays apply to aliens who have been admitted on a nonimmigrant visa and remained beyond the permitted period. Such an alien will be ineligible to apply for readmission as a nonimmigrant except on a new visa issued at the alien’s native country.

The penalties in the case of overstay include cancellation of visa and restriction on future visa applications

However, in cases in which the Secretary of State find extraordinary circumstances for overstay, there may be some leeway on the penalties. These extraordinary circumstances may be deemed on humanitarian grounds or in a case where national interests exist. There are some blanket extraordinary circumstances defined by the Department of State. These include alien physicians who are working in underserved US locations with some pre-conditions. Other aliens who have overstayed but are stateless, residents of countries other than the country of citizenship or citizen of a country without a US consulate may have special considerations to extend their visas or apply for new ones.

INA Section 212(A) (9) (B) Unlawful Presence and Penalties

In general, any alien who is present without permission in the US may be barred from entry to the country again with certain preconditions. Conditions for barred re-entry include:

  • Unlawful presence in the US for less than a year but over 180 days and application for reentry within 3 years of departure
  • Unlawful presence for over a year and application for reentry with 10 years of departure

In other words, penalties for unlawful entry to the country includes a 3-year ban for lawful presence of less than a year (more than 180 days) and a 10-year ban for unlawful presence of more than a year

Reasons for ineligibility for Green Card application through the process of Adjustment of Status

Ineligibility for Green Card application is the most common penalty imposed for illegal immigration and visa overstays. The most common reasons for individuals being ineligible to apply for a Green Card through Adjustment of Status include:

  • Entry to the US without permission
  • Lawful entry but overstay beyond allowed time
  • Illegal employment in the US without any relation to a US Citizen
  • Holding of a ‘Visa Waiver’ or a ‘Transit Without Visa’ and no immediate relation to a US Citizen

Entry on a K-1 fiance relationship visa and application for Green Card on a basis other than marriage or marriage to another petitioning sponsor. No availability of an immigrant visa number. Applicants for Green Card through adjustment must have a current priority date or have an immediate relative who is a US citizen.

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