It is common knowledge that obtaining a visa of any kind from the U.S. Consulate in Manila is a difficult process. Consulate officers and staff have become increasingly "stingy" with Filipino applicants for nonimmigrant visas. The reason for this increased difficulty is no secret, a large portion of applicants leave the Philippines and never return in spite of limitations mandated by their visa.
In light of such difficulty, I am constantly amazed at how randomly my Filipino friends will overstay or disregard their initial entry visa. Many such visa-holders decide not to return to the Philippines and overstay their visa with little or no knowledge of the immigration consequences of falling out of status.
In addition, I have come across a large contingent of Filipino's with multiple entry visas who have overstayed their visa thus automatically terminating their right to come in and out of the U.S. at will. This golden ticket, allowing for multiple-entries into the U.S., is something a holder should protect at all costs and must understand the significance of losing once the decision has been made to let it go.
While the intent to live in the U.S. and find a better life is common and understandable the mistake of overstaying in the U.S. without a plan, is inexcusable. This is especially true if such a decision is at the expense of a multiple-entry visa, one should understand that overstaying is likely to result in the permanent ban of future visas. The following is a synopsis of some of the problems one encounters if he or she decides to overstay a visa.
On September 30, 1996 Congress enacted sweeping immigration reform that included individuals living in the U.S. unlawfully as a result of entry or overstaying their visas. Effective from April 1, 1997,
"An alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled."
This immigration reform went on to prohibit the return to the United States by such violators for a proscribed period of time. In fact, the law states that:
"Any alien (other than alien lawfully admitted for permanent residence) who- (I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States ... and again seeks admission within 3 years of the date of such alien's departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.
The harm from overstaying is clear, if you depart the U.S. after overstaying your visa for a period of 6 months or more you will be banned from returning to the U.S. for at least 3-years and possibly 10. Though a waiver does exists for such a ban they are difficult to obtain. In light of the fact that such a request might be made of a former multiple entry visa holders, such a decision would be foolhardy.
Overstaying ones visa also has a profound impact on the ability to change status from the initial nonimmigrant entry visa to another nonimmigrant visa. In order to change status from a visitor's visa to say a H-1B working visa an applicant must be in status. Failure to maintain status will result in the denial of the requested change of status.
If a nonimmigrant timely files for an extension or change of status prior to the expiration of his or her visa the application tolls or stops any unlawful presence.
So, while the application is pending the applicant is not considered in unlawful status as long as the application was received by the Immigration Service prior to the expiration of the initial visa. A denial of such a request recommences the acquisition of unlawful presence.
Though options do remain if an applicant falls out of status by overstaying his or her authorized time, maintenance of status is crucial to keeping most immigration options open.
Plan ahead before you simply decide to let your visa expire. See an Immigration Attorney who can help your reach your immigration goals without throwing away your golden ticket.