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Came over as a nanny on a J-1 on a one year visa. Worked as a nanny for six months, then mutually ended employment with family. Continued to stay in the US but was unable to find another job. Continued to stay even after the expiration of the visa, so now officially an overstay. Left on own before the one year anniversary of the I-94 form.

Is this less than a one year overstay since left voluntarily before the one year anniversary of the I-94, so a three year ban?

Or does the overstay start from the termination of employment making it more than a year, so a ten year ban?

Is there any way to check with the embassy or USCIS to see what the ban is? Or maybe they are not even aware of the overstay so this would be a bad idea, telling them about it.

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  • 3
    Have you viewed your travel history and compliance information at the CBP I-94 website? If so, what did they say?
    – Patricia Shanahan
    Commented Jan 24, 2020 at 14:57
  • 1
    @PatriciaShanahan it wouldn't show anything if OP left via the Mexican border though, as these exits are not tracked
    – JonathanReez ♦
    Commented Jan 25, 2020 at 0:03
  • @JonathanReez In that case, the OP might have trouble proving when they left the US. In any case, it is worth knowing what it says about entries and exits.
    – Patricia Shanahan
    Commented Jan 25, 2020 at 0:09
  • Visa expiration is irrelevant. Does it say a date or does it say "D/S" on your I-94?
    – user102008
    Commented Jan 25, 2020 at 9:28
  • It says D/S, left by plane, they have exit date on the link Patricia posted
    – RamblinMan
    Commented Jan 25, 2020 at 23:16

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Is this less than a one year overstay since left voluntarily before the one year anniversary of the I-94, so a three year ban? Or does the overstay start from the termination of employment making it more than a year, so a ten year ban?

It depends on a few factors, including (1) what it says on your I-94, (2) the dates when you overstayed - USCIS published a new policy in 2018, (3) whether the pending court cases regarding the new policy are settled in favour of USCIS and if so, what the effective date ends up being for the new policy, (4) whether there is any mail from DHS you might have missed.

This is a complicated area of the law and it is best to consult with a lawyer.

Is there any way to check with the embassy or USCIS to see what the ban is?

The general answer to this kind of question is: the only way to know for sure whether DOS considers you to have a 3- or 10-year bar is to apply for a visa. The only way to know for sure whether DHS considers you to have a 3- or 10-year bar is to apply for admission. If the visa or admission is refused with the code 212(a)(9)(B)(i)(I), then you have a 3-year bar. If the code is 212(a)(9)(B)(i)(II), you have a 10-year bar.

Or maybe they are not even aware of the overstay so this would be a bad idea, telling them about it.

Note that when you apply for a visa, you are required to answer "yes" to the question asking whether you ever overstayed your status or otherwise violated the terms of your admission during any previous travel to the US, and you will have to provide an explanation. DOS will then determine whether a bar exists.

Finally, keep in mind that even if you don't have a statutory bar, the overstay will weigh heavily against you in future visa applications (i.e., as evidence that you might overstay again or attempt to live in the US permanently).

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  • Thanks for all the information. There is no mail from DHS, maybe some sent to old address.
    – RamblinMan
    Commented Jan 24, 2020 at 23:38
  • @RamblinMan If you stayed at one address the whole time you were in the US, you should be ok (unless something got lost). If you moved and forgot to update your address, then you could be in trouble.
    – Brian
    Commented Jan 25, 2020 at 1:44
  • @RamblinMan While still in the US, aliens are required to update their address with DHS via form AR-11 (now done online) within 10 days of moving.
    – Matthew FitzGerald-Chamberlain
    Commented Jan 25, 2020 at 6:57
  • Didn't do that, but obviously it doesn't make sense to tell them where you are living after an overstay
    – RamblinMan
    Commented Jan 25, 2020 at 14:55
  • @RamblinMan Actually, it's really important to tell them, precisely because of scenarios like this. You need to be able to receive all correspondence, in case your status is rescinded or deemed violated, or you are placed in removal proceedings. You need to speak with a lawyer and they will explain to you how to get files from USCIS or ICE that you might not have.
    – Brian
    Commented Jan 25, 2020 at 18:43

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