Calculating Overstay, and repercussions.

[Dewave2 17]

Hi guys,

Trying to figure something out, with regards to my overstay. My visa waiver expired in January, but we didn't file until July, which meant I suffered my first period of overstay.

Firstly: My timeline is complete thus far, Im trying to figure out the exact date my overstay was put on hold due to my adjustment. Can anyone tell me what this date was based on my timeline? Im trying to figure out exactly how many days I overstayed.

Secondly: If this period of overstay is less than 180 days, what would the penalty/repercussions be, if I were to say, abandon my AOS and leave the country immediately? Just curious is all

Thirdly: If the period of overstay is over 180 days, what would the same penalties be?

Forthly: What other major points of overstay, say 300 days for example, are worth taking not of, and their respective penalties?

[Penguin_ie 5,993]

The major points of overstay are 180 days (over that is a 3 year ban) and 1 year (over that is a ten year ban).

[bigdog 376]

The major points of overstay are 180 days (over that is a 3 year ban) and 1 year (over that is a ten year ban).

[jaycali 415]

1. Don't know.

2. There is no set bar from re-entry for overstay of less than 180 days - However, the chances of CBP denying you entry is very likely, and the chances of receiving a new non-immigrant visa any time soon are slim.

3. 180 days - 1 year = 3 year bar. More than 1 year = 10 year bar. The bar is a time in which you cannot apply for any visa. However, getting a non-immigrant visa approved, even after the bar is often unlikely.

4. "Less than 180 days", "Between 180 days, and 1 year", and "1 year plus"

[aaron2020 11,651]

Hi guys,

Trying to figure something out, with regards to my overstay. My visa waiver expired in January, but we didn't file until July, which meant I suffered my first period of overstay.

Firstly: My timeline is complete thus far, Im trying to figure out the exact date my overstay was put on hold due to my adjustment. Can anyone tell me what this date was based on my timeline? Im trying to figure out exactly how many days I overstayed.

Secondly: If this period of overstay is less than 180 days, what would the penalty/repercussions be, if I were to say, abandon my AOS and leave the country immediately? Just curious is all

Thirdly: If the period of overstay is over 180 days, what would the same penalties be?

Forthly: What other major points of overstay, say 300 days for example, are worth taking not of, and their respective penalties?

Here is your situation.

Since you are adjusting based on marriage to a US citizen, any overstay will be forgiven if the green card is granted. So, you have nothing to worry about there with your overstay.

However, your overstay only becomes relevant if the green card is denied or you abandon the process by going home. If the green card is denied or you abandon the process, your time since your VWP expired until you leave is considered your overstay. (The reason for this is that it is to prevent people who don't qualify to adjust from getting protected time (i.e. stay in the US legally) - time they wouldn't have gotten.)

If your green card is denied or abandoned, and you leave with more than 180 days to one year of unlawful presence, you will be ban from the US for 3 years upon leaving.

If your green card is denied or abandoned, and you leave with more than a year of unlawful presence, you will be ban from the US for 10 years upon leaving.

By entering the US on the VWP, you have waived your right to appeal any immigration determination. If the green card is denied, you cannot appeal the denial. You will need to leave or live in the US illegally. If you leave, you will have a ban and your wife would need to file for a waiver which may allow you back into the US.

Edited November 27, 2012 by aaron2020

[ceadsearc 516]

The clock "paused" on the date of your NOA1.

[aaron2020 11,651]

The clock "paused" on the date of your NOA1.

It does not "pause" for anything.

If the green card is granted, the overstay is forgiven.

If the green card is denied or the process abandoned, then days between the date of the NOA1 and the date he leaves are ALL days of unlawful presence. There is no "pause."

While the adjustment is being adjudicated, the beneficiary is protected from deportation for being an overstay. This is not the same as a "pause" in accumulating days of unlawful presence.

Details matters. While you may see these as the same things, USCIS does not.

Edited November 28, 2012 by aaron2020

[ValerieA 350]

I don't think anyone has answered this yet - the date you entered the period of authorized stay (due to your AOS) is the date on the NOA1 - the form they mail you to confirm that your package has been received.

[Brother Hesekiel 2,236]

The moment the USCIS acknowledged the receipt of your AoS package by mailing you the NoA1 (I-797), you entered a period of authorized stay. That aside, "unlawful presence" is not "being made an issue of" at the AoS stage or at any point thereafter to immediate relatives of US citizens.

You only would have a problem if you (1) were denied AoS because you are serial rapist or drug dealer or communist assassin, or (2) abandon AoS. Since I doubt you are either of the aforementioned, I suggest to chill and not worry your pretty head with non-relevant issues. This whole process is stressful enough; no need to make it more stressful than it ought to be.

[Harpa Timsah 13,258]

The OP is considering abandoning his AOS and he wants to know what will happen. You have to count from VWP expiry to NOA1 from the AOS. If you abandon the process, the current authorized stay time is not erased. Sorry about the troubles.

Edited November 29, 2012 by Harpa Timsah

[ceadsearc 516]

It does not "pause" for anything.

If the green card is granted, the overstay is forgiven.

If the green card is denied or the process abandoned, then days between the date of the NOA1 and the date he leaves are ALL days of unlawful presence. There is no "pause."

While the adjustment is being adjudicated, the beneficiary is protected from deportation for being an overstay. This is not the same as a "pause" in accumulating days of unlawful presence.

Details matters. While you may see these as the same things, USCIS does not.

I think you are misunderstanding what I am saying. In terms of counting how many days of overstay he has now, the days count from day 1 past the expiration of visa/I-94/whatever to the date on the NOA1. The immigrant is then in a period of authorized stay. Yes, if the immigrant leaves those days will add up and if approved it will be irrelevant but in terms of how many days of overstay, see above.

I have also seen people say on this board that that "grace period" does not count towards overstay even if denied. That seems odd to me, and I have also seen people say it does, but I'd be grateful if anyone could post the actual link where USCIS specifies one way or the other.

[Moomin 292]

If you're thinking of leaving because things aren't going well and you're seperating - leave while you are not above a year in days of unlawful presense.

If you're thinking of leaving because you'd like to visit back home, please wait until you have greencard in hand. Otherwise it's a lengthy process having to wait in home country for a whole new process.

If you're not ready to move to the US yet your relationship is fine and you're thinking of the damage your overstay has done, maybe wait until you have greencard in hand, go home and establish yourself and then arrange a tourist visa interview to "trade in" the greencard for a tourist visa. Techincally, you'd be surrendering the greencard however you'd also be demonstrating your lack of desire to immigrate, along with ties to home country

WVP doesn't really expire. Your ESTA approval does however that doesn't matter either(except you can't renew it because of your overstay). It's the stamp in your passport that matters. In order to determine how many days of overstay you've had so far, we'll need the date on that stamp, or the date of your POE. If the lawful stay ended in January, you're unfortunately most likely above a year in days of unlawful presense.

[ValerieA 350]

You only would have a problem if you (1) were denied AoS because you are serial rapist or drug dealer or communist assassin, or (2) abandon AoS.

Is that someone who assassinates Communists, or a Communist who assassinates? Also, would a capitalist assassin be OK?

WVP doesn't really expire. Your ESTA approval does however that doesn't matter either(except you can't renew it because of your overstay). It's the stamp in your passport that matters. In order to determine how many days of overstay you've had so far, we'll need the date on that stamp, or the date of your POE. If the lawful stay ended in January, you're unfortunately most likely above a year in days of unlawful presense.

I don't understand how the OP would be above a year, since January was only 10 months ago? Are you counting from entry? Unlawful presence doesn't start until the date of the stamp in the passport.

[Moomin 292]

Is that someone who assassinates Communists, or a Communist who assassinates? Also, would a capitalist assassin be OK?

I don't understand how the OP would be above a year, since January was only 10 months ago? Are you counting from entry? Unlawful presence doesn't start until the date of the stamp in the passport.

OP said it expired in january. If OP is really referring to VWP/ESTA expiring, then true. That's why I asked for the date on stamp in passport.