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Visa Overstay
Section 222(g) of the Immigration
and Nationality Act, as amended, states in the case of an alien who
has been admitted on the basis of a nonimmigrant visa and remained
in the United States beyond the period of stay authorized by the
Attorney General, such visa shall be void beginning after the
conclusion of such period of stay. An alien described in paragraph
(I) shall be ineligible to be readmitted to the United States as a
nonimmigrant, except on the basis of a visa (other than the visa
described in paragraph (1) issued in a consular office located in
the country of the alien's nationality (or, if there is no office in
such country, in such other consular office as the Secretary of
State shall specify); or where extraordinary circumstances are found
by the Secretary of State to exist.
No regulations have been written to
fully define this statute. INS has issued internal memoranda and
cables concerning this statute. However, these memos and cable are
not law. The effective date of this statute is September 30, 1996.
This statute applies to anyone who
entered the United States on a nonimmigrant visa and stayed beyond
the period authorized by the Attorney General. This is usually the
time indicated on the 1-94 or an Immigration Judge finds in the
course of removal proceedings that there has been a status
violation, resulting in the termination of the alien's period of
authorized stay or ms determines in the course of adjudicating an
application for an immigration benefit that there has been a status
violation, resulting in the termination of the alien's period of
authorized stay. Duration of status (D/S) is usually provided to F,
G, J, A, and 1 nonimmigrant. A stay beyond the dated listed on the
1-20 or IAP-66 is a violation of status, it is not considered to be
an overstay for purposes of this statute. An alien admitted for D/S
will be considered an overstay under this statute only if:
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An immigration judge finds in the course of
removal proceedings that the individual has violated status,
resulting in the termination of the alien's period of authorized
stay; or |
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INS determines in the course of adjudicating
an application for a benefit that there has been a status
violation, which results in the termination of the alien's
period of authorized stay. |
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The following penalties are used if someone is
determined to be a "visa overstay".
Cancellation of visa stamp -When an alien has
been determined to be a "visa overstay" his/her visa is
automatically voided and all future nonimmigrant visas must be
obtained in the country of nationality, except for those who are
eligible for an exemption due to "extraordinary circumstances." If
the alien has more than one visa in his/her passport, the visa that
was used to enter the country will be voided and not the visa that
was not used for admittance to the United States. However, when the
other visa expires, the alien must apply for a new visa in their
country of nationality. This statute only applies if the applicant
applies for a visa in a country other than their country of
nationality. The Department of State has determined extraordinary
circumstances - here are the blanket exemptions:
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Alien physicians serving in an under served
area in the US under I.N.A. Section 214(1), and who have filed a
timely application for a waiver of the J-I two-year requirement
and/or an H-IB petition. This applies to these individuals whose
period of stay expired while applications that had been filed
before the authorized period of stay expired -and that were
subsequently approved were pending. |
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Aliens who are a resident of a country other
than the country of citizenship can apply for a visa in their
country of residence. |
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Nationals and residents of a country in which
there is no" US consulate must apply for a visa at the consulate
designated by the Department of State. |
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Dual nationals must apply in their country of
residence. |
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