SEPT. 2, 2017

Visa Cancellation Due to Overstay

by Atty. Reuben S. SEGURITAN

A citizen of a foreign country may enter the United States with a B-2 visa for tourism and leisure purposes. Using this nonimmigrant visa, a foreign national may be allowed to stay in the United States for 6 months at a time. The B-2 visa for tourists itself has a separate validity period of 10 years or 5 years, depending on the validity granted by the US consulate in the home country. The B-2 visa will state if the foreign national may enter the United States multiple times during the validity period or only for one time.

When the foreign national enters the United States using the B-2 tourist visa, the US immigration officer will write a specific date on his Form I-94 which is the date his authorized stay expires. If the foreign national does not leave the United States by this date, then he is overstaying and will be considered out-of-status and hence, deportable under US immigration laws. Another consequence is that his B-2 visa is automatically cancelled for overstaying in the United States. There is no waiver or forgiveness for this and a new visa must be obtained from the US consulate in his home country to return to the United States in the future.

A foreign national may apply for extension of stay by filing a Form I-539 or Application to Extend/Change Nonimmigrant Status. The USCIS recommends that it be filed at least 45 days before the authorized stay expires.

The foreign national may apply for extension of stay if he was lawfully admitted to the United States with a nonimmigrant visa; the nonimmigrant visa status remains valid; he has not committed any crimes that make him ineligible for a visa; he has not violated the conditions of his admission; and his passport is valid and will remain valid for the duration of his stay.

A foreign national will not be allowed to file for extension of his stay if he was admitted to the United States under the following visa categories: Visa Waiver Program; Crew member or D nonimmigrant visa; in transit through the United States (C nonimmigrant visa); in transit through the United States without a visa (TWOV); fiancé of a US citizen or dependent of a fiancé (K nonimmigrant visa); or informant and his accompanying family on terrorism or organized crime (S nonimmigrant visa).

If the application for an extension is approved, the foreign national will be issued a replacement I-94 with a new departure date. The foreign national can remain in the United States up to this new I-94 date. When he leaves the United States, he must submit both the old and new I-94 forms to the airline staff on check in counter.

However, if the application for an extension is denied, the B-2 tourist has 30 days to depart the US starting from the date of the letter notifying him of the decision that the extension was denied. If he does not depart within 30 days, he will be considered deportable by US authorities.

If the denial of the extension of stay is dated or received after the date on the I-94 form, then the B-2 visa of the foreign national is automatically cancelled. The foreign national must return to his home country and apply for a new visa at the US consulate in order to return to the United States.

This means that the 30 days given to those whose application for extension of stay was denied is meaningless because their B-2 visa was automatically revoked anyway. It would have been better for the foreign national to return to his home country before the deadline on the I-94 and then re-entered the United States using the B-2 visa.


REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at (212) 695 5281 or log on to his website at www.seguritan.com

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