When a foreign national enters the U.S. on a nonimmigrant visa, they are issued an I-94 Arrival/Departure Record. The I-94 shows the person’s particular visa status in the U.S. and controls how long the person is permitted to remain in the U.S. Overstaying the time granted on the I-94 can have significant consequences. Once you overstay your I-94 you begin to accrue unlawful presence. If you accrue more than 180 days of unlawful presence, you are subject to a 3-year bar from the United States and after you accrue more than 1 year of unlawful presence, you are subject to a 10-year bar. Another consequence of overstaying your I-94 is that your nonimmigrant visa will automatically become void under INA 222(g).
What is INA 222(g)?
INA 222(g) states that if a foreign national entered the U.S. on a nonimmigrant visa and remained beyond their authorized period of stay, the nonimmigrant visa will become void once they leave the U.S. and if the foreign national wants to re-enter the U.S., they will need to apply for a new nonimmigrant visa at the Consulate in their country of nationality.
Can I enter the U.S. again if my visa becomes void under INA 222(g)?
If you stay beyond the period authorized by your I-94, the nonimmigrant visa you traveled on will technically become void when you leave the U.S. You should not attempt to re-enter the U.S. with that visa. Rather, you are required to travel to your country of nationality and apply for a new U.S. visa at the U.S. Consulate.
Are there any exceptions to this rule?
If you filed a timely, nonfrivolous application to extend or change your status and it was approved or you left the U.S. before it was adjudicated, you are not subject to INA 222(g). In order to be considered timely, USCIS must have received the request to change or extend status on or before the date on the applicant’s I-94. An application should not be deemed frivolous as long as it was not a baseless excuse to allow the person to stay in the U.S. to perform activities that were inconsistent with their visa status.
This is an important exception, as many changes or extensions of status take such a long time to adjudicate that it is common for an applicant to depart before the request is adjudicated. Applicants should keep a copy of the change or extension request and any notices received from USCIS to prove that the request was filed in a timely manner and was not frivolous.
There are some additional blanket exemptions based on extraordinary circumstances that allow an applicant who is subject to INA 222(g) to apply for a new nonimmigrant visa in a country other than the country of their nationality. For example, if the applicant is a resident in the country where they are applying (even if that country is not their country of nationality), they qualify for this exemption and may apply for the nonimmigrant visa in their country of residence.
What if my I-94 says D/S?
D/S stands for Duration of status and is commonly used for F and J visa holders. If your I-94 says D/S, this means INA 222(g) would not apply to you as long as there is no finding of a status violation by an immigration official.
FREE Visa Resources
Click on the buttons below in order to claim your free Visa Guide (E-1, E-2, TN, EB-5, H-1B, L-1, PERM, NIW, EB-1, O-1, E-3), sign up for our free Webinar, join our Facebook Group, or watch our videos.
Set up a Visa or Green Card Consultation
For a dedicated one-on-one consultation with one of our lawyers, click on the button below to schedule your consultation.
This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.
