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What generally happens if I am forced to overstay my legal stay in the USA because my flight gets delayed, cancelled, or diverted? Will I be banned from entering the USA? Will I still be able to use the Visa Waiver Program to enter?

Some examples:

  • Amy entered the U.S. on a visitor visa. She was supposed to travel out of the USA on a flight that would leave one day before the date on her I-94. However, that flight was cancelled due to severe weather at her origin airport, and she was rebooked onto another flight that leaves one day after that date.

  • Beatrice is a Japanese national returning on the 90th day of her Visa Waiver Program, traveling back to Japan on All Nippon Airways Flight 175, which diverted to LAX four hours after it departed.

  • Colleen also entered the U.S. on a visitor visa. She was scheduled to leave on a flight that would depart late at night on the last day of her I-94. However, that flight was delayed by a few minutes / one hour, which pushes the departure time into midnight, which technically means she's overstaying.

Note: Some of the foregoing is already covered in the answer to this related post. However, that post is specific to the Visa Waiver Program, and editing it would change its meaning completely; I'm looking for a general answer for both VWP and those traveling on standard visas.

This is also not a duplicate of Legal status in the US on an H-1B visa if flights are delayed by a day?, as that is specific to H-1B visas and the answer there may not apply to other visa types.

  • Comments are not for extended discussion; this conversation has been moved to chat. – JonathanReez Feb 19 '18 at 21:32
  • Wouldn't you already be stamped out of the country if you had already made it to your gate? – user3306356 Feb 20 '18 at 2:09
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    @user3306356 There is no exit stamping in the USA. – gparyani Feb 20 '18 at 3:44
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This is from the nonimmigrant services PDF:

I am visiting under the Visa Waiver Program, but I can’t leave as scheduled due to an emergency. Is there anything I can do to extend my stay?

If you have been admitted under the Visa Waiver Program and an emergency is preventing you from departing the United States within your period of authorized stay, you may request that USCIS grant you a period of satisfactory departure. A grant of satisfactory departure cannot exceed 30-days. If you are granted satisfactory departure, and leave within the window of time allotted, you will be regarded as having satisfactorily accomplished your visit in the United States without overstaying your period of authorized stay. If you are visiting under the Visa Waiver Program and do not qualify for a grant of satisfactory departure, you may not stay in the United States beyond the initial 90-days for which you were authorized.

What types of emergencies would qualify me for a grant of satisfactory departure?

Satisfactory departure is granted only in limited cases and for serious emergencies, such as hospitalization, or conditions that cause flights to be delayed or cancelled for more than 24 hours (weather, worker strikes, etc.). Otherwise, people visiting under the Visa Waiver Program may not stay beyond their initial 90-days.

How do I apply for a grant of satisfactory departure?

To apply for a grant of satisfactory departure, an InfoPass appointment would need to be made with the local USCIS office having jurisdiction over the place of temporary stay. At the appointment, any available evidence of the emergency situation would be presented.

If you can't get an appointment (because you might not be delayed long) get official evidence from the airline of why you overstayed if you ever get questioned at the border in the future. This is what I got told by a CBP officer when I came into the country in 2015 telling them that I am staying for 89 days. I thought I was being clever doing 89 days, but day 1 is the day you arrive so that counts towards your 90 days. I thought I would have a day leeway, luckily my flight left late on my last day, but in time.

You can make an appointment with the USCIS outside the United States to be safe if you've already left the USA.

For information about extending your stay on a standard visitor visa check this document. For a B1 or B2 visitor/business visa you should file form I-539

If you are in the following nonimmigrant categories, you should file form I-539 to extend your stay.

I would apply to extend my visa in case an issue comes up if I had a flight close to midnight on its last day. If you don't and there is a delay I would gather evidence like I said to show the embassy when you next renew your visa or if you have a valid visa still to show the CBP officer why you overstayed slightly the next time you enter the US.

Please be aware if your application for extension is denied it will have consequences.

If your application is denied, you may be required to cease employment and depart the United States immediately.

In addition, any nonimmigrant visa in your passport granted in connection with your classification becomes void. Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).

Personal advice: Book your flight home a day or two before you have to leave if you can. I don't think it's worth the risk for an extra day or two in the US when you've already spent a long period of time there.

  • Does this apply to standard visas as well? – gparyani Feb 19 '18 at 15:34
  • @gparyani as I understand you can apply to extend visa's, this can get rejected though so is risky and could cancel your visa. Where as you can't apply for an extension under the VWP. But this is a different question, if my answer is what you were looking for please accept it :) – BritishSam Feb 19 '18 at 15:40
  • My question is a general question, asking about different kinds of visas and also VWP. The source you cited only explains VWP. – gparyani Feb 19 '18 at 15:41
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    I would still apply to extend my visa incase an issue comes up if I had a flight close to midnight. If you don't I would gather evidence like I said on the delay to show the embassy when you next renew your visa or if you have a valid visa still to show the CBP officer why you overstayed slightly last time. – BritishSam Feb 19 '18 at 16:13
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    Interestingly this wording suggests to me that if your flight is delayed less than 24 hours, it's not considered serious, so you should allow at least a day at the end of your Visa Waiver period for marginal flight delays. – Lightness Races in Orbit Feb 19 '18 at 18:36

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