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. Last Updated: 07/27/2016

New U.S. Law Tightens Penalty for Overstaying

Remaining beyond the period authorized by the U.S. Immigration and Naturalization Service inspector when one enters the United States is quite common. But provisions in new legislation that comes into effect April 1 make overstaying a serious matter for those who wish to retain the right to travel to the United States.

Before the enactment of new immigration legislation last year, there were few consequences for "overstaying" that could not be avoided by leaving the United States. While many people who overstay are deported, many more leave the country before or after detection, with no legal penalty.

But one provision in the new legislation institutes a three-year bar to entry for persons whose cumulative days of unauthorized stay total more than 180 days but less than one year, and a 10-year bar for persons whose days of unauthorized stay total one year or more. Days begin to count April 1.

Another provision, effective Oct. 1, 1996, makes void the visas of persons who overstay -- by even one day -- the period of validity granted by the INS inspector upon entry to the country. It also prohibits such persons from being readmitted to the United States except on a new visa issued by a consular post located in their home country. Thus, if the INS inspector at the border has evidence that an applicant for admission overstayed at any time after Sept. 30, 1996, the applicant's visa will be canceled, unless it was issued after the overstay by a consulate in the applicant's home country. An applicant whose visa is canceled at the U.S. border is in the same position as someone arriving without a visa. The significance of this will be seen below.

Another important provision which takes effect April 1 allows INS inspectors at the border to exercise a power formerly reserved to immigration judges.

Under the new "expedited removal" procedure, an INS inspector, with the concurrence of a supervisor, can issue a formal order of removal in two situations: 1) when the inspector determines that an applicant's visa was obtained by fraud; and 2) when an applicant arrives at the border without a visa.

Thus, in the situation described above where an applicant's visa has been canceled because of an overstay, the INS inspector will have the discretion to issue a formal order of removal. The issuance of such an order triggers a five-year bar to reentry. While the INS inspector may permit the traveler to withdraw his or her application and return home, most travelers would obviously prefer to avoid such situations altogether.

Moscow-based attorney Sean Walgren specializes in U.S. immigration law at the offices of Firestone Duncan.