I overstayed in the US, and now I want to go back to my home country (India) after three years.

Will there be a problem with US Immigration while departing?


You will not have any issues when leaving the US. The US doesn't have physical immigration when you are leaving the country - it's all done electronically.

Once you check-in (and/or no later than one hour before the flight) the airline will pass your details to the CBP, who will detect the overstay, but given that at that point you're on the way out of the country they will not attempt to do anything about it at that time.

However once you leave, you can pretty much plan on never coming back, or at least not for a very long time. An overstay of more than 1 year will earn you an automatic 10 year ban from entering the US. Your existing visa (if it's still valid) will be invalidated, and you will not be able to obtain a new one for (at least) 10 years - with very ltitle recourse to appeal that fact. Even once your 10 years is up it's going to be difficult to convince the consulate/border staff that you will not overstay again if you are let into the country.

(There are a few exceptions to this, but likely the only one that's relevant is if you are under the age of 18, but I'm guessing this isn't the case)

Note that if you don't leave voluntarily and you are caught and deported, then the punishment is even more severe - so leaving on your own is still a good thing!

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    "Once you check-in (and/or no later than one hour before the flight) the airline will pass your details to the CBP, who will detect the overstay" Actually the exit gets recorded when you board the flight; otherwise you could check in and have the exit recorded, and then simply walk out of the airport – Crazydre Dec 31 '16 at 9:29
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    @Crazydre It's actually both. They are first notified no later than an hour before the flight which allows them to detect (for example) people leaving the country who should not be. The are then notified again after the flight has actually departed. – Doc Dec 31 '16 at 17:56

The US has no exit immigration, but you will definitely have a hard time getting a new visa, or, if it's still valid, it will be revoked when your exit is electronically recorded. If you then try travelling to the US again, the check-in staff will receive a "DO NOT BOARD" message after you submit your APIS info.

If you need to visit the US again, apply for a waiver of inadmissibility at the US embassy well in advance of your trip.

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    @pnuts Not that I know of – Crazydre Dec 30 '16 at 17:31
  • I'm pretty sure that a visitor can't generally apply for a waiver of inadmissibility for unlawful presence, I think that is only available to immigrant, K and V visa applicants. I think non-immigrant visitors have no choice but to wait out the ban in all but the most extraordinary of circumstances. – Dennis Jan 1 '17 at 1:09
  • @Dennis: Visitors can apply for an nonimmigrant waiver of inadmissibility (INA 212(d)(3)(A)) for almost all bans. – user102008 Jan 1 '17 at 17:04
  • @user102008 Correct, drug trafficking being one exception (for nonimmigrants) – Crazydre Jan 3 '17 at 1:02
  • I think it would be more precise to say not that the visa will be revoked, but that it will become invalid automatically. One reason for this is to prevent the revocation of visas held by people whose travel history has been recorded inaccurately. – phoog Dec 9 '18 at 14:28

If you plan on returning to the USA at some point in your life (and this includes even transfers, flights to, say, South America where you are merely connecting in the USA), you may want to consult with an immigration attorney before you leave.

The 10-year ban others have mentioned is real, but it does not actually kick in until you physically leave. It also only applies if you have been unlawfully present for a year or more (the ban is 3 years if you have six months or more, and there is no automatic ban if the overstay was shorter). There are, of course, additional consequences; your visa will be invalidated, and you will find it difficult to get a new one even if no formal ban applies.

Before you leave, a good immigration attorney may have some strategies available to solve that issue. I can think of two strategies that may or may not work, depending on your situation.

DO NOT ATTEMPT THESE WITHOUT COMPETENT LEGAL ADVICE! I am not a lawyer, just a somewhat knowledgeable amateur.

One is through marriage to a US citizen, then applying for a Green Card. Once you have a Green Card, you can freely travel in and out of the USA.

Another is supposedly to not leave on your own, but rather trigger deportation proceedings. The 10-year ban does not apply when you were deported. Of course, deportation carries its own consequences (which can include a 5-year ban, a 20-year ban or a lifetime ban). Now the trick is that you can avoid the consequences of a deportation by using what is called voluntary departure. AFTER deportation proceedings have started, you can apply for voluntary departure - meaning that you save the US government the expense of deportation.

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    "The 10-year ban does not apply when you were deported." Yes it does. See 9 FAM 302.11-3(B)(2)(c): "Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and regardless of whether the alien departed on his or her own initiative or under removal order." – user102008 Jan 1 '17 at 17:11
  • "Of course, deportation carries its own consequences (which can include a 5-year ban, ..." Actually it's 10-year for a first deportation from inside the US (5 years is for a first deportation on arrival). – user102008 Jan 1 '17 at 17:12
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    Thanks for the update. Seems they plugged that loophole! There's a reason I said not to try this without a lawyer. – Kevin Keane Jan 5 '17 at 4:14

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