US B2 Visa Depature Date - flight just after midnight, entry period ends the day before

Question

I have a question that I am a foreign student in the US under F1 visa, my father arrived in Dec.8, 2014 under a B2 visa to attend my graduation ceremony and we plan to do some sightseeing after worth. He booked his round-way tickets from Dec.8, 2014 to Jan.8, 2015. However, he told the immigration officer at LAX that he will stay for one month, so he received a stamp of staying period until Jan.7, 2015.

His actual flight will be 12:40 AM on Jan.8, 2015 which he needs check in on 7th's night. Will he or I be penalized if his situation is considered as overstaying for one day? We know it is a mistake that he should say his stay is until Jan.8, but a reschedule ticket will cost almost 500 dollars, so we just wonder if he can just check in and receive a departure stamp as Jan.7 and leave as planned.

Answer 1

Since his flight leaves on the 8th, he will be considered to have left on the 8th, which is after the date on his I-94. The U.S. has no exit controls; the information they use come from passenger manifests from the airlines, which will list the time of the flight.

The most direct consequence is that his visa (the one he entered on) will be void (if it is still valid). He will need to apply for a new visa the next time he wants to visit. He will also not be able to use the Visa Waiver Program (if he is from such a country) in the future.

Whether it will have an effect on his future visa applications is impossible to say. In my opinion, how long he stayed in the U.S. (whether legally or illegally) has a bigger effect than just overstay or not.

It should have no effect on you.

One thing he can do to not get his visa voided is to apply for an Extension of Status (EOS) before his I-94 expires. As long as it's filed before the I-94 expires, and is non-frivolous, time while the EOS application is pending is considered authorized stay. The processing takes 3-6 months, so he will definitely leave before then, and the application itself will be abandoned (whether they would have approved or denied it is irrelevant). But applying for EOS also costs several hundred dollars, so it's not necessarily better than changing the flight.

P.S. If you are talking about the date they stamp below the entry stamp, you should also check the date on the electronic I-94 here. Sometimes they are different and the stamp is wrong.