Overstaying a visa
October 24, 2005 9:27 AM   Subscribe

I'm asking this two-part question for a friend. He's overstayed his holiday visa.

He came to the US 3 years ago on a 3-month holiday visa, which he's overstayed. He's returning to Italy in a month, and these are his two concerns: 1) Is there a possibility that he could be hassled/detained by Immigration on his way out of the US? 2) How long will he be banned from returning? I've looked on different newsgroups, and the very dense US Immigration site, and have found varying info: 3 years, 10 years, forever. Some more info: This is the only time he's ever overstayed a visa. And although he's Italian, he came here via the UK, where he was living at the time. I've suggested he talk to an immigration lawyer before he leaves, but in the meantime: Does anyone have any idea about what he should expect?
posted by veronica sawyer to Law & Government (14 answers total)
it's been a while since i left the US the last time (plus i never have been here illegally) but i don't think they really check for your status when you LEAVE the country. airline counter people will check for the validity of your passport when you check in, but i don't think they check for your visa status either.

so your friend is probably safe unless the counter people report to the immigration that someone with expired visa is leaving the country...(in which case i don't see why the immigration would care, the person's leaving anyway).
posted by grafholic at 9:51 AM on October 24, 2005

in which case i don't see why the immigration would care, the person's leaving anyway

At worst they'd care enough to put him on a banlist as an unwelcome person to the USA. Then they'd let him on the plane out of the country. That's my guess.
posted by shepd at 10:05 AM on October 24, 2005

Anecdotal answer below:

The only experience I have of this is one occasion when I was returning to the UK from the US, under the Visa waiver programme. Upon entry to the US, you complete a card, and the bottom part is torn off and kept with your passport (usually stapled, sometimes not). When you're leaving the US, the tear-off part will be collected at the point of departure (usually as you go to board the plane by someone from the airline. The torn off strips are then sent to the Dept of Immigration where the numbers they bear are put into the computer, so I'm told).

On one occasion, a young guy in front of me in the line had lost his tear-off card. He was allowed on the plane but another passenger who seemed to know what he was talking about said that it was absolutely vital for this kid, as soon as practicable after he returned to the UK, to contact the US Embassy, explain to them that he'd lost the card that should have been handed in, show them his boarding card to prove he'd come back to the UK, along with any other proof he had that he'd returned home (preferably a personal appearance at the Embassy, if possible).

If he didn't do this, he was warned, after six months (which is the maximum time you're allowed to visit the US under the visa waiver programme), he would show up on the Dept of Immigration computer as an overstayer, and this would be likely to hamper any future attempts to gain entry to the US. With machine-readable passports being mandatory, it would be flagged up at his next attempt to enter the US.

So, although your friend might not have a problem leaving the US, he is likely to have serious problems returning in the future.
posted by essexjan at 10:18 AM on October 24, 2005

Your friend will not be coming back for a visit this Christmas. Say goodbye until you can make it to Italy. A visa overstay of 3 years is not going to look good and he will have a hard time ever getting back into the US even after his 10 year bar is over. Leaving will be no problem, they may tell him that basically he's not coming back for a while, but that is about it. It is better that he leave voluntarily at this point.

The Immigration laws state that an alien that:

has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States,is inadmissible.

posted by Pollomacho at 10:41 AM on October 24, 2005

I had a friend who overstayed his visa by about 20 years. He returned home OK, but when he returned they would not let him on the plane because he did not have a proper entry visa to the US. He was told it would be one year before he could re-enter the US. He had been married 3 times during his stay in the US, and he was told if he had taken care of this before he left the US, it would have taken about an hours worth of paperwork to fix it. His marital status may have been why the waiting period was only one year.

In his case, he was later denied entry to the US because they had done a complete background check on him in his home country and he had a minor criminal charge when he was younger.

I strongly suggest he consult an immigration lawyer BEFORE he leaves.
posted by Yorrick at 10:45 AM on October 24, 2005

Best answer: Now that the fingerprinting-and-mugshot program has been extended to EU citizens, your friend may be checked on exit depending on which airport he is leaving from. At those airports he may be flagged as an overstayer immediately. Even if his departure airport is not on that list, he should not discount the possibility of a random check.

Your friend needs to see a US immigration lawyer without fail, before leaving the country. If he ever wants to set foot in the US again, the absolute worst thing he can do right now is leave without getting solid legal advice.

What he's done is a serious violation, but if he is lucky and gets good representation it MAY not result in a long-term ban. Good luck.
posted by Tholian at 10:49 AM on October 24, 2005

I'm reallly the opposite of an expert on these sorts of things. However, what's to stop your friend walking out via mexico or canada? My impression was that the security usually worked the other way round. (IANAL!)
posted by prentiz at 11:11 AM on October 24, 2005

If the overstay is detected before leaving the US, it may also raise questions on how your friend has supported himself over the intervening period. He should run, not walk to the nearest lawyer.
posted by holgate at 11:20 AM on October 24, 2005

However, what's to stop your friend walking out via mexico or canada?

That's not really the issue. If he does that, he now has no exit date, which will bite him if he wants to come back at some later time.
posted by smackfu at 11:40 AM on October 24, 2005

he now has no exit date, which will bite him if he wants to come back at some later time.

Ok, but couldn't he have 'left' via Mex or Can three years ago?
posted by sagwalla at 11:42 AM on October 24, 2005

When he leaves he'll have to hand in his I-94 (the piece of paper essexjan refers to above) to the airline counter staff, but they for the most part neither know nor care about immigration so he'll be fine there.

I would tell him to ideally avoid the airports listed on Tholian's link above, the ones testing new Exit procedures, but even at that it seems that it's a do-it-yourself system.

Your friend is European and presumably a fluent English speaker and a presentable guy so if I were him I wouldn'y worry about anything at all happening on departure.

Coming back, however, is another story. I know illegal Irish people in the States who used to be able to travel back and forth with a good story and a bit of luck. Not any more!

/not a lawyer, visa holder in the US for 7 years

Ok, but couldn't he have 'left' via Mex or Can three years ago?

He still is supposed to have handed in his I-94.
posted by jamesonandwater at 11:51 AM on October 24, 2005

In the event you can't find or afford a trustworthy lawyer, there is likely someone on staff at the office of your US Senator whose job is specifically to deal with immigration issues for local residents - that person may be a good resource for a fairly straightforward question like this.

Good Luck!
posted by BigLankyBastard at 1:29 PM on October 24, 2005

Best answer: Having overstayed a visa a few years ago, I was advised by friends to "lose" the I-94 (actually the route recomended was putting my passport through the washing machine) and just feign ignorance at the gate. In fact I handed it in, no one even noticed the date and I've been back plenty of times since.

Flying back to London this weekend from Houston the gate staff failed to remove the I-94 from my friend's passport (we were well within visa time limits). He'll have a legit excuse if there are any problems on a trip back to the US.

The whole flimsy nature of the I-94 (not even stapled into my passport on this recent visit) makes it pretty clear that the authorities are not overly bothered about it (hnec the new measures). It's reasonable to say you've lost it or just hurry through at the gate and no one will think they should be collecting one. I second the advice that your friend should definitely avoid the airports with new exit procedures, but otherwise should be fine. Any problems on return are met wth "yes, before I left [within time limit] last time I lost my form but no one said anything at the gate".

The length of overstay is only a problem if he gets hassled on the way out - but as there are no immigaration staff on the gates (as was mentioned above, it's airline staff who check the form) that's unlikely. Barring a total disaster he could walk onto a plane fly to the EU and return in a week's time without any problem (under a new visa waiver).
posted by patricio at 5:53 PM on October 24, 2005

Response by poster: Oh dear. In the spirit of this callout, in case anyone's still reading this, I appreciate your help very much.

Us far as an update goes: My friend flew home last week, and had no trouble leaving, but he was told by the Al Italia desk person, "You know you won't be allowed back, right?" So, we'll see.
posted by veronica sawyer at 8:48 AM on November 30, 2005

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