What happens when you overstaying on a 90-day holiday visa waiver to the USA

A: If you entered the US on the Visa Waiver Program, as most visitors from the 37 eligible countries do today, you normally are given up to 90 days to remain in this country -- but you are not allowed to work here during that time. If you overstay this 90-day period by 180 days to one year, you face a three-year bar from reentering the US. Overstaying the 90-day period by more than one year subjects you to a ten-year reentry bar.

Aside from the problem of the three- and ten-year reentry bars, if you overstay a visit under the Visa Waiver Program even by a few days you no longer would be allowed to reenter under that program in the future. Instead you would have to make a formal application for the B-2 visitor’s visa at the nearest US Embassy, which requires a fee and can take considerable time. You can expect close scrutiny of your application, and if you have a compelling reason for a prior brief overstay, you should include evidence of it with your application. Holders of visitor’s visas usually are admitted for up to six months and may, before the expiration of the visa, apply for an extension if they have a good reason for wanting to stay longer in the US.

Employment in the US, either while in status under the Visa Waiver Program, while here on a visitor’s visa, or during an overstay, is another issue. People temporarily in the US are not allowed to have employment without specific authorization from the US government, either with a work visa (such as H-1B), or with an Employment Authorization Document issued, for example, while an application for adjustment of status to permanent residence is pending. If you do work here without authorization, that is considered visa fraud by the US immigration authorities, and you render yourself inadmissible to the US in the future in almost all circumstances.

Note, finally, that the 90-day Visa Waiver period of admission to the US normally cannot be extended. Only in extreme situations where you could document the reason with compelling evidence would you be granted an extension. An example of such a situation would be hospitalization in the US following an accident or serious illness.

If you have questions about this or any other aspect of immigration law, you can have a free, confidential consultation at one of our weekly legal clinics. Remember: It is far better to get legal advice before taking a step that might have lifelong consequences for you, rather than acting first and then trying to fix a situation that may well have no solution.