16

I have an Indian friend that overstayed in America for 10 months.

Initially, he has a visa for work in USA for 3 months and it expired in the meantime and now is staying there without a valid visa.

If he wants to travel to Romania as he has a valid student visa for Romania, what are the sanctions that American state will apply to him when he wants to leave America? (Besides 3 year USA interdiction).

Can American state send him back to India, even he has the documents valid for Romania?

  • 7
    Visa expiration does not have any bearing on the allowed duration of stay in the US. The significant date is the "until" date on the passport stamp or the expiration date of the I-94, which should be available at i94.cbp.dhs.gov (or in some cases may still be an actual paper form). – phoog Jun 20 at 12:51
41

USA does not have exit controls, so you can go wherever you can get an airline to take you.

The airlines tell the authorities about who their passengers are, so the authorities will learn about the overstay after you have left, and it will most likely be difficult or impossible for you to enter the US afterwards.

(That is, if there is an overstay at all. The expiration date on a US visa only determines when the visa is not good for entering anymore. How long you can stay is governed by the status you got when you used the visa, and it is quite possible for that to be longer than the validity of the visa).

  • 4
    It may also be difficult to get a visa for any other country that requires applicants to disclose overstays eg UK – Traveller Jun 20 at 12:13
  • 18
    The American authorities actually learn about the overstay before the departure, so they have a chance to prevent the departure if the traveler is wanted for a particularly egregious crime. For a ten-month overstay they are unlikely to intervene. – phoog Jun 20 at 12:47
  • 1
    That's if there is an overstay at all, which is not clear from the description the OP gave. – Michael Hampton Jun 20 at 13:34
  • 2
    @jwenting my point is that the US is notified of the impending departure before the passenger boards (in contrast to the assertion in this answer). I do not know what criteria the US uses to decide whether to interdict departing passengers, let alone whether an overstay of any sort could induce such a decision. Do you? – phoog Jun 21 at 3:41
  • 2
    The US does have exit controls although they may not routinely implemented. – Andrew Leach Jun 22 at 11:12
17

If CBP catches him, his next stop will definitely be India unless he can show CBP his travel to Romania is imminent. Though it's not like he's on a "wanted" poster, being caught would be a matter of dumb luck.

So if he wants to choose his next destination, he should make his own travel arrangements. The US has no exit controls, there's no routine stop at CBP to check your papers on exit, so they won't grab him then.

However I think your friend should talk to an immigration attorney about exactly what his situation actually is. The visa expiring doesn't necessarily mean overstay. Other countries may ask if he's overstayed, and he needs to have the Correct answer for that question, not an assumption or guess. He is expected to know, and if he gives an answer that is wrong, that is presumed to be lying/deception. Deception is serious business in immigration.

Keep in mind, also, that if he is refused entry to Romania (or I gather there aren't direct flights to Romania, so Heathrow*, Schiphol etc.), the carrier who brought him this far will be responsible for taking him away from that country to a country he is legally allowed to enter. That's not the USA, right?? That would be India, but if the airline in question doesn't go to India, that could be a big mess. And again, do they really have direct Romania-India flights? The intermediate airport must also be able to take you after what will now be a refusal. You may be better off choosing an airline that can definitely get you from the intermediate stop and Romania to India, and ideally does not require transit visas or immigration challenges for the transfer airport back to India. Emirates/Qatar/Etihad comes to mind.


* And Britain does require a transit visa, and they do ask if you have overstayed.

  • "If CBP catches him, his next stop will definitely be India": the US would probably allow voluntary departure. If they catch him when he's on his way to Romania, for example (they do do spot checks), they're not likely to detain him and fly him at their own expense to India. Even if they catch him somewhere else, they're not likely to detain him for the months it will take to get him in front of an immigration judge in the face of his stated desire to leave the country. – phoog Jun 21 at 15:31
  • "The visa expiring doesn't necessarily mean overstay" - it doesn't? This seems like pretty much the exact dictionary definition of "overstay". Can you expand on this or back this claim? (Of course one can have permission to stay past visa expiration, but a necessary condition of this is to actually contact someone to get permission, which may leave it a bit unclear whether you've legally overstayed, but I'm sure this would've been mentioned had this happened) – NotThatGuy Jun 21 at 15:42
  • 2
    The period on a Visa is the period that the Visa authorises you to present yourself at the border. At the Border the Border Agent will allow (or not!) a period of stay, writing it in the passport. All the Visa allows is you arriving at the Border. Anything after that is up to the Agent. – simon at rcl Jun 21 at 16:09
  • @phoog fixed.... – Harper Jun 21 at 23:33
  • 1
    @NotThatGuy indeed it doesn't. Here is what the US government has to say about it: travel.state.gov/content/travel/en/us-visas/…. The permission to stay in the US is given by the immigration officer at the border, and the duration of the granted period of admission has nothing to do with the visa expiration date. – phoog Jun 22 at 4:28
6

There are a few different consequences of overstaying in the US. The ones most likely to be applicable to your friend are:

  • the 3-year bar, meaning that after he leaves the US, he will be banned from entering the US for 3 years following departure (with rare exceptions), and
  • the "consular shopping bar", meaning that every time he applies for a US visa in the future, he must apply at a consulate in his country of nationality (India). He would not be permitted to apply in Romania.

The US generally does not intercept overstayers on their way out. We can only speculate as to why, but it seems that they would much rather have someone leave and tell them they can't come back, than to pay to detain them and put them through removal proceedings just to accomplish a similar outcome.

Whether or not these bars apply to your friend depends on details of his situation. The expiration of the visa does not mean he has overstayed. Relevant details include when his I-94 expired, whether any period of his employment was "unauthorized", whether he had ever filed to change or extend his status, and others. If he cares about ever entering the US again, he should consult an immigration lawyer as soon as possible to obtain advice about his particular situation.

  • 3
    The consular shopping (or "visa shopping") bar is often overlooked. +1 – phoog Jun 21 at 15:36

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.