Reminder : Overstay Can Cancel Multiple Entry Visas
Posted Jun 21, 2002

Regular readers of the MurthyBulletin and MurthyDotCom know that, should one overstay the authorized period of admission to the U.S., there is a possibility of being apprehended and removed (deported). Few people are aware, however, of the consequences for those who overstay briefly and depart before attracting the attention of INS. It is often assumed that, if one has a multiple-entry visa, s/he will be able to return to the U.S. for the entire period of the visa, even after having previously stayed beyond the allotted time.

A common example of this is a person with a 10-year tourist visa who is allowed by the INS at the Port of Entry (POE) to stay in the U.S. for 6 months. This six-month period is indicated on the I-94 card issued to the tourist at the POE. Suppose our traveler remains in the U.S. beyond the allowed six months and does not file an extension with the INS. Suppose also that the period of overstay is less than 180 days and that the person returns home without incident. (Periods of overstay in excess of 180 days give rise to even more significant problems that are not the subject of this article.) In such a situation, it is often assumed that one can continue to use the multiple-entry tourist visa until it expires. This is not the case. Under section 222(g) of the Immigration and Nationality Act, the visa of a person who overstays becomes void after the conclusion of the period of authorized stay indicated on the I-94. This cancellation occurs without the individual's knowledge. One cannot reenter the U.S. except with a new visa applied for at the consulate in the home country or if one qualifies for a visa exemption requirement to apply for the visa in another country based on "extraordinary circumstances."

While these overstays may not have been noted on any record before now and, therefore, were not fully tracked, since September 11, 2001, the exit / entry tracking system has been improving. Therefore, while it may have been possible at one time to use visas that should have been previously cancelled, one must not assume this can be done now.

As a warning, an example follows of what happened to one young visitor. A 16-year-old boy entered the United States on a 10-year, multiple entry visitor visa and was admitted to visit his relatives in the United States. The INS Officer at the Port of Entry issued an I-94 card granting him a 6-month period of stay. The boy stayed with his relatives for 7 months, overstaying his I-94 card and legally permissible stay by just 1 month. His actions, while improper and potentially subjecting him to removal, did not result in any bar for future entry into the United States.

The teenager left the United States and, on his way out, turned in his I-94 card to the proper personnel as is required at the time of departure. The I-94 card was entered into the computer database along with information in reference to his overstay. Unknown to him, the U.S. Department of State (DOS) canceling canceled his 10-year multiple entry visitor visa but did not inform him of the cancellation.

A few months later, the now 17-year-old tried to re-enter the United States again to visit his relatives. Upon his arrival at the POE, the INS Inspector determined that he did not have a valid visa to enter the U.S. His entry was refused. The INS also could not send him back because he is considered a minor (or child) under U.S. law and needs to be accompanied by an adult family member or a Government Official for his own protection. The INS placed him in protective custody. The boy did not understand what was going on around him. He was understandably upset since he assumed his visa was valid and he demanded to see a judge. He also managed to call a relative who contacted an attorney in our Office.

The attorney explained the situation to the boy and his relative. He negotiated with the INS for the boy to be permitted to withdraw his request for admission and return to his home country. If he were to have had a hearing before a judge, he would have run the risk of being ordered removed (or deported) from the U.S. Such a removal order would bar him from coming back for at least five years. In contrast, if one can obtain permission to withdraw the application for entry to the U.S., nothing prevents the person from legally being be able to re-apply for a new visitor visa at the consulate in the home country and entering the U.S. again in a few months. Although his chances of getting another visitor visa are not necessarily good after the overstay, if he is able to satisfy a consular officer at his home country consulate with exhibits of strong family and financial ties to the home country, that he has no intention of living in the U.S., our young traveler could be issued another non-immigrant B-2 tourist visa.

After deciding to allow him to withdraw his application, the INS verified the boy's identity and made sure that his parents were apprised of the situation. Since the family was unable to send someone to travel with the boy, the INS kept him in protective custody until they could arrange his trip home with a government escort. With much prompting and follow-up by the attorney, the INS finally made the arrangements and the boy was returned home safely. He had been in custody for over 3 weeks. Quite often this period of detention is significantly longer. Other lawyers have informed us that their clients in similar situations have been in INS detention and custody for a year -- or two years -- or longer. Thanks to the persistence of our determined attorney at The Law Office of Sheela Murthy, the young man could depart the U.S. and without a 5-year or 10-year bar on his record!