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:

 
- 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
- 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.
   

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:

- 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.
- Aliens who are a resident of a country other than the country of citizenship can apply for a visa in their country of residence.
- 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.
- Dual nationals must apply in their country of residence.
 
 

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