Question: Five months ago, I came to the United States on a B2 tourist visa. I was given permission to stay in the U.S. for six months, so my authorized period of stay is expiring next month. I have not been able to purchase a flight to return to China, and I am worried about traveling during the Covid pandemic. What will happen if I overstay my visa?

Answer: If you remain in the U.S. longer than the time allowed, you will begin to accrue unlawful presence. If you leave the U.S. after accruing unlawful presence, you may be banned from returning for either three years or ten years.

If you accrued more than 180 days but less than one year of unlawful presence during a single stay in the U.S., you will be barred from reentry for a period of 3 years. If you accrue more than one year of unlawful presence, you will be barred from reentry for a period of 10 years. 

The 3-year or 10-year period starts only when you depart the United States. During the 3-year or the 10-year unlawful presence bars, you will not be allowed back in the U.S., and you will not be granted a visa. 

Can I adjust status if I do not leave the U.S.?

If you are the “immediate relative” of a U.S. citizen, you can apply for adjustment of status in the U.S. even if you have accrued unlawful presence. “Immediate relatives” are: (1) the spouse of a U.S. citizen; (2) the parent of a U.S. citizen, if the U.S. citizen is over the age of 21; and (3) a U.S. citizen’s unmarried children under the age of 21. Therefore, if you entered the U.S. legally and never left the U.S., you can still obtain a green card if you have a genuine marriage to a U.S. citizen. 

Who does not accrue unlawful presence?

Under some circumstances, the law provides an exception for accrual of unlawful presence to some of the following individuals:

• Asylees: Time while the asylum application is pending is not counted as unlawful presence.
• Minors: Children do not accrue unlawful presence while they are under age 18.
• Battered Spouses and Children: Self-petitioners under the Violence Against Women Act (VAWA) do not accrue unlawful presence if they can show a connection between the status violation and the abuse.

I left the U.S. and am subject to the 10-year bar. Is there any way to return to the U.S. early?

If you are subject to the 3-year or 10-year bar, you may apply to receive a waiver. If your application for a waiver is successful, you may obtain an immigrant visa.