Overstaying tourist visa

[balkanboy 7]

Hello All,

 

Yesterday my relative was in very unusual situation. She was going to leave the US using flight through Boston. We found that all flights were cancelled because of the storm and that the next available flight is the day after.

When I explained that she needs to leave the US by midnight, otherwise she will break the law by overstaying her tourist visa, customer service said "I am sorry".

When we found that all other international flights are booked, we went to airports immigration office (in waiting area).

I explained her situation and at first officers were not nice, asking why she waited the last day, etc.

When I asked is it possible to extend her stay for one more day, they said that they cannot do that.

When I asked what will happen at POE when she travels to the US next time, I was told that she basically overstayed her visa, but because it is only one day it depends on officer at POE if she will be admitted.

The gentleman was describing that if the officer will admit her to the US at that point depends on factors like if he had good or bad morning coffee that day.

 

At the end, he gave us suggestion. He said that once you go back to your country, go to the US consulate and explain what happened. They (US consulate personnel) have power to void previous visa which will void overstay and issue new tourist visa.

 

I hope this will help someone who is in "The act of God" situation.

 

Thanks,

 

Balkanboy

[WeGuyGal 1,052]

Never leave anything till the last minute.. precisely for such reasons. 

[geowrian 22,337]

An overstay of 1 day does not have any sort of bar associated with it. The bars start at 180 days. However, even 1 day of overstay will cancel the existing visa. She will need to get a new visa issued. Given the circumstances, I don't think they will hold the overstay against her or otherwise prejudice their decision.

 

Never wait until the last day to leave...these things do happen.

[Crazy Cat 41,981]

There is no "Act of God" provision in the overstay rule. If this was a VWP visit, that privilege is now lost forever.....and I'm sure he/she will not receive a tourist visa for some time.  Bottom line:  Your relative was responsiblr for leaving the US within the allotted time...He/she failed to do that......and now he/she must face the consequences.....and it is laughable to think that a visa which has been used can be voided........lol.

[SusieQQQ 11,586]

Yup, like weguygal says, might be hindsight but it is NEVER a good idea to book anything on the last day (or even last couple of days) of something expiring. You have to leave room for things like this.

 

How the embassy responds may depend what country it is. I tend to agree with geowrian, but for countries with lots of overstay issues it might be a problem.

 

Edited March 14, 2018 by SusieQQQ

[Crazy Cat 41,981]

10 minutes ago, balkanboy said:

They (US consulate personnel) have power to void previous visa which will void overstay and issue new tourist visa.

For the experts....is this true?? @geowrian

[Roel 7,192]

And this why you NEVER schedule your flight on last possible moment. 

 

If she was on VWP then overstaying means she most that privilege forever  

 

If she was on tourist visa then overstay means her visa is no longer valid and if she wants to visit USA again she needs to go to embassy and get another visa. 

 

The embassy won't void her overstay lol. They will tell her the same thing - it was her fault to wait until last day to leave States. 

[geowrian 22,337]

5 minutes ago, missileman said:

For the experts....is this true?? @geowrian

That would be news to me! haha The CO cannot turn back time and erase a past overstay...not without a time machine, at least.

What they can do is issue a new visa without holding that overstay against them (as they could for anybody with an overstay <180 days).

[balkanboy 7]

Let me be more specific.

First, the relative is not from VWP country.

Second, if US consulate issues new tourist visa, her next entry using new visa will not depend if immigration officer had bad morning coffee or not.

 

It is true that there is no "Act of God" provision in the overstay rule. However, it makes sense to try to explain at US consulate what happened. Generally speaking, in the situation when you are "hit by the bus" X days before your stamp in the passport expires and you are in the hospital for X+1 days, you also overstayed. It is hard to imagine that if you can prove what happened, law is so blind (or maybe it is?)

 

Finally, the suggestion came from two immigration officers.

 

Balkanboy

 

 

 

[SusieQQQ 11,586]

5 minutes ago, geowrian said:

That would be news to me! haha The CO cannot turn back time and erase a past overstay...not without a time machine, at least.

What they can do is issue a new visa without holding that overstay against them (as they could for anybody with an overstay <180 days).

Yup, that overstay will be on the system forever. What will help her is that the embassy issued a new visa (assuming it does), which is a  positive signal to the CBP officer examining her for admission on her next trip.

 

Which leads me to a sidetracked observation... if it's a visa, that was probably a 6-month stay. Is that correct? if so she needs to be careful about how often she visits, if she usually stays that long. A one-off one day overstay might not in itself be an issue, and if this is just one instance of such a long stay it also wouldn't be a concern, but if on examining her travel history as a result of the new visa application they find she is spending "too much" time in the US, then that could be a problem for getting a new visa.

[SusieQQQ 11,586]

3 minutes ago, balkanboy said:

Let me be more specific.

First, the relative is not from VWP country.

Second, if US consulate issues new tourist visa, her next entry using new visa will not depend if immigration officer had bad morning coffee or not.

 

It is true that there is no "Act of God" provision in the overstay rule. However, it makes sense to try to explain at US consulate what happened. Generally speaking, in the situation when you are "hit by the bus" X days before your stamp in the passport expires and you are in the hospital for X+1 days, you also overstayed. It is hard to imagine that if you can prove what happened, law is so blind (or maybe it is?)

 

Finally, the suggestion came from two immigration officers.

 

Balkanboy

 

 

 

They will generally be more sympathetic to being hit by a bus than by arranging a last-day flight out.

 

Also, having a visa does not guarantee admission, new or not.

Edited March 14, 2018 by SusieQQQ

[Crazy Cat 41,981]

1 minute ago, balkanboy said:

Let me be more specific.

First, the relative is not from VWP country.

Second, if US consulate issues new tourist visa, her next entry using new visa will not depend if immigration officer had bad morning coffee or not.

 

It is true that there is no "Act of God" provision in the overstay rule. However, it makes sense to try to explain at US consulate what happened. Generally speaking, in the situation when you are "hit by the bus" X days before your stamp in the passport expires and you are in the hospital for X+1 days, you also overstayed. It is hard to imagine that if you can prove what happened, law is so blind (or maybe it is?)

 

Finally, the suggestion came from two immigration officers.

 

Balkanboy

 

 

 

1.  No one is guaranteed entry to the US other than US citizens.  If a CBP officer suspects your relative is misusing a visa, he/she can deny entry to your relative.

2.  This overstay was not a "hit by a bus" situation.  It was simply poor planning by your relative.

3.  The overstay happened.  It is a historical fact.  The visa with which your relative entered the US can not be erased as if it never happened.....

[arken 4,197]

My understanding is:

Her overstay of 1 day voided her existing visa. She needs to get a new visa to enter US next time. Her new visa approval depends on how the CO interprets her 1 day overstay and of course new conditions at that time. If she gets the new visa, her entry to USA depends on how understanding the POE officer is about her 1 day overstay.

 

Regardless, the overstay will stay on the record, it’s about if the CO and the POE officers will be convinced about that 1 day overstay was not in her control.

 

Edited March 14, 2018 by arken

[Crazy Cat 41,981]

Do you honestly think someone can void a used visa, thereby erasing the history of your relative's entry into the US? 

[geowrian 22,337]

17 minutes ago, balkanboy said:

Second, if US consulate issues new tourist visa, her next entry using new visa will not depend if immigration officer had bad morning coffee or not.

That is always a factor...no entry is guaranteed except for a USC. A recently-issued visa holder is not usually turned away because of past (known by/disclosed to the CO) conduct.

 

Quote

It is true that there is no "Act of God" provision in the overstay rule. However, it makes sense to try to explain at US consulate what happened. Generally speaking, in the situation when you are "hit by the bus" X days before your stamp in the passport expires and you are in the hospital for X+1 days, you also overstayed. It is hard to imagine that if you can prove what happened, law is so blind (or maybe it is?)

Correct. They can be forgiving in consideration for a new visa, but they cannot ignore an overstay (especially if it's due to poor decision making).

 

Quote

Finally, the suggestion came from two immigration officers.

I'm assuming you mean CBP officers at the airport. While they are familiar with parts of immigration law (obviously), they don't handle overstays or the issuing of visas. That's a completely different department (CBP is under DHS whereas COs are under DOS) with different policies and such. Fundamentally they weren't wrong on the steps...get a new visa from the CO...but the specifics as stated was incorrect (they cannot void the visa and make the overstay disappear).

 

Edit: For an analogy, imagine going to the DMV and being told you can't get a license because your Social Security Card has your old name in the system. The DMV worker can point you at where he thinks you need to go (the SSA), but he doesn't know what their policies are to change a name...he just needs it fixed.

Edited March 14, 2018 by geowrian