With the first presidential debate last night and the election rapidly approaching, Immigration policy has become one of the hottest topics in the public conscious. When thinking about illegal immigration, most peoples’ minds gravitate towards aliens entering the county illegally via crossing at a section of the US border. However, in the Department of Homeland Security’s Entry/Exit Overstay Report for the Fiscal Year 2015, it turns out that many immigrants who are here illegally came by acquiring a legal visa and then decided not to leave.

According to the report, there were 45 million immigrant arrivals to the United States whose visas expired in fiscal 2015. 99% of those left in accordance with the terms of their visas, but about .09% didn’t, leaving around 416,500 immigrants remaining illegally in the county this year, adding to the pool of the over 11 million undocumented immigrants residing in the United States.

Leading countries for overstays

What Are The Penalties for Overstaying?

According to Houston immigration attorney David Breston, if caught, a number of different things can happen depending on how long they have overstayed. Unless you are a student, whose visa terms are usually more general due to the fickle nature of schooling deadlines, or are under the age of 18, overstaying within the United States will begin to accrue what is known as unlawful presence.

As stated above, unlawful presence takes on different forms depending on how long one overstayed their visa and if they voluntarily leave before any official removal proceedings, such as deportation. In general, unlawful presence penalties are as follows:

  • If you accrue unlawful presence for 180-364 days but voluntarily leave before any official removal procedure, you cannot return to the United States for 3 years.
  • If you accrue unlawful presence for 365 days or more but voluntarily leave before any official removal procedure, you cannot return to the United States for 10 years.
  • If you accrue unlawful presence for more than a year, are deported, and try to reenter the United States illegally, you may be barred from reentry for life.

There are certain circumstantial exceptions to these rules, such as applying for a “provisional waiver” due to extreme financial hardship for a lawful resident spouse or parents or being eligible for a green card and adjusting status. However, it is best to consult with a local immigration attorney who can advise you on your particular situation.

Are These Penalties Enforced?

The key part about the above section is IF they get caught. These penalties are only enforced if an immigrant departs from the United States and tries to return. Otherwise, often times, immigrants who overstay their visas face no consequences or use it as a ticket to enter the United States unless they somehow end up in jail or have a run in with the law. According to a report by The Washington Times, the Federal Government admits that most immigrants who overstay their visas are rarely caught due to lack of resources. Of those who overstayed their visas the last fiscal year, immigration agents investigated just 10,000 of them, or about 0.2%, and arrested fewer than 2,000, less than 1%, saying that most others were not a threat or priority targets.

While it may seem impossible for immigrants who come to the United States via visa and overstay would have trouble maintaining a daily life, there are options that allow them to integrate into society. Although they cannot get a driver’s license, many undocumented immigrants can acquire an Individual Taxpayer Identification Number, which allows them to both work and pay taxes in the place of a social security number. In fact, according to a study done by U.S. News, undocumented immigrants collectively pay nearly $12 billion each year to state and local governments via taxes. Otherwise, many others find ways to live in the United States without the use of a bank account or social security number.


So what does happen to immigrants who overstay their visas? Not a whole lot. Interest in tracking foreign visitors who overstayed their visa ramped up after it was discovered that the plane hijackers from September 11, turned out to be visitors in the United States on expired visas. But otherwise, the sheer amount of time and resources it would take to find and deport all 11.3 million undocumented immigrants in the United States is not a feasible option, estimated between $400 and $600 billion over a 20 year time period. And since there are very limited ways to fix a visa overstay without incurring some hefty penalties, many just choose to stay and do what they can to lead a productive life here in the United States.

Therefore, if you are at risk of be deported and separated from your family or way of life, be sure to contact a local immigration attorney who can help you navigate the complex immigration system of the United States and ensure that you file the right forms and waivers. Or ask us a question and let us set you up with a free consultation with an attorney in your area today.