Is It True If I Overstay U.S. Visa I Can't Apply for New One in Mexico or Canada?

Permitted stay in the U.S. running out? Make sure to extend it before the end date on the I-94, or you'll have no choice but to return to the U.S.consulate in your home country.

If you are visiting or working in the United States on a nonimmigrant visa, you should know what will happen to your visa if you remain beyond your period of authorized stay. While immigration authorities probably won’t come after you, the law contains various consequences, which might affect you sooner or later. One of these is known as the “consular shopping bar.” It can make obtaining your next visa to the United States far less convenient than it otherwise might have been.

When Does Your Period of Authorized Stay End?

Your period of authorized stay in the U.S. is the amount of time you are allowed to remain in the country. It is found on your I-94 document. At one time, I-94s were issued on paper cards, but they are now, in most cases, accessible via the I-94 page of the U.S. Customs and Border Protection (CBP) website.

Depending on the type of visa you have and its terms, you may be able to extend your stay. For example, if you are in the U.S. for a job, and your employer wants to continue hiring you, and extensions are allowed on your visa, you could apply for one. Extension applications must be submitted to U.S. Citizenship and Immigration Services (USCIS) before the expiration of your period of authorized stay. In most cases, extensions are requested by filing USCIS Form I-539.

What happens if you file for an extension but USCIS waits to approve it until after the end date of your period of authorized stay? (This is not an unlikely scenario--USCIS is often backed up with applications.)

If you filed your extension application on time (before your authorized stay period ran out), and USCIS eventually approves it, your period of stay will automatically be extended from the previous end date. This happens regardless of whether USCIS approves the extension before or after the end date. This way, you don’t end up with any gaps in your period of authorized stay.

If USCIS does not approve your extension application, however, you will have to leave the U.S. immediately.

Consequences of Staying Longer Than Permitted on Your I-94

If you overstay your period of authorized stay—even by one day— then you trigger what is known as the consular shopping bar. The consular shopping bar comes from Section 222(g) of the Immigration and Nationality Act (I.N.A.), which states that if you remain inside the U.S. beyond your period of authorized stay, your visa will be cancelled. Additionally, if you want to apply for another visa to the U.S., you will be required to do so at the U.S. consulate in your country of nationality.

Before the consular shopping bar was enacted, many foreign nationals who overstayed simply went to consulates in Mexico or Canada to apply for another period of stay or a new visa. The consular shopping bar ended this practice. Now, unless you can show that extraordinary circumstances apply to your case, you must reapply for a visa at the consulate located in your country of nationality.

Also note that, if you applied for an extension and were denied, you won’t trigger the consular shopping bar so long as you had good reasons for requesting an extension; that is, your extension request was not frivolous.

What If You’ve Already Overstayed: Can You Overcome the Consular Shopping Bar?

If you do overstay the date on your I-94 card and trigger the consular shopping bar, you still could apply for a visa in your preferred country, but only if you can show that extraordinary circumstances apply to your case. You will have to write to the consulate directly and explain how your case involves extraordinary circumstances.

Extraordinary circumstances might, for example, be acknowledged in the case of an H-1B applicant who was denied a change of status application from some other nonimmigrant status because of the H-1B cap. Falling out of status through no fault of your own should also count as an extraordinary circumstance.

Who Is Not Affected By the Consular Shopping Bar

The consular shopping bar does not apply to certain categories of people in the United States. For instance, if you entered the U.S. under the Visa Waiver Program, or if you are allowed to remain in the U.S. for “duration of status,” you will not need to worry about it. Duration of status is usually given to students in academic programs (F visa holders) and exchange visitors (J visa holders). A person who enters with duration of status is allowed to remain in the U.S. until the end of his or her student or exchange visitor program. However, if you are an F or J visa holder and you are found to have violated the conditions of your entry, for example by working without authorization, then you will trigger the consular shopping bar.

The consular shopping bar also does not apply if you are granted temporary protected status (TPS). It does apply if you filed for asylum or were granted voluntary departure.

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