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U.S. Customs and Border and Protection calculated a 1.21 percent rate of visa overstays for the fiscal year of 2019. That number accounts for 676,422 cases for fiscal year 2020 and the number of people who overstay their tourist visa is most likely to increase due to COVID-19.
As the United States eased restrictions on inbound international flights, users in our WhatsApp community have reached out to us with the following question: What should I do if I overstayed my tourist visa and wish to return to the U.S.? The answer is not simple.
How to proceeed if you overstayed your tourist visa
Due to the closure of airports stemming from the novel coronavirus, many tourists were unable to leave the country before their tourist visas expired. U.S. Citizenship and Immigration Services suggested tourists apply for an extension which could extend their stay up to an extra six months from the date of expiration. In normal times the agency recommends applying 45 days before the authorized stay expires. Because of the pandemic, some tourists did not have enough time to apply.
We recommend individuals apply regardless of how soon their visa would expire (even if it had expired). The application would excuse them for overstaying due to special reasons beyond their control. USCIS was flexible on late applications, given the circumstance of the pandemic affecting the travel accessibility.
Also Read: How to Apply for a Tourist Visa Extension
We spoke with media correspondents from USCIS, CBP, and also contacted ActionNYC to see what options are available for returning.
Action NYC, a program offering New Yorkers (regardless of status) safe immigration legal help, mentioned that there is no standard protocol or general information to follow. In a phone call they said that each person has to be reviewed individually due to the different circumstances that impeded them from leaving the country. “It also depends which country they are from,” they added.
The length of the overstay can also play a factor when entering a port of entry. For example, if you overstayed for more than 180 days but less than a year, it will result in a 3 year ban from the date you leave the country. Whereas an overstay of one year or more will result in a 10 year ban. (USCIS)
Also Read: How ActionNYC Works, a Program That Provides Free Legal Services in New York City
There are exemptions
Documented contacted USCIS and the spokesperson said, “USCIS may provide special support for individuals who may be affected by circumstances beyond their control. These special situations have been used at various times in the past, including for natural disasters and similar crises.”
The novel coronavirus is in fact listed as such circumstance, as per USCIS press release from April 2020. However, individuals returning will encounter a CBP officer at the port of entry, who will see and decide if there is a valid reason for the overstay. For this consideration, we recommend having any proof of application of extension (even if you were not granted) or other records that could justify your overstay, or excuse your reason for not applying for an extension, such as financial hardship.
You can also call the CBP officers at the possible port of entry of the state, and let them know of your situation ahead of time. They will provide specific information based on your case. Here is a list of U.S. port of entries.
We contacted the CBP’s public affairs specialist from New York, but were given no additional information.
