Overstayed Your US Visa? Unlawful Presence, the 3- and 10-Year Bars, and How to Avoid Them in 2026

An overstay is remaining in the US longer than the period shown on your I-94 record, not on your visa. The consequences depend on how many days of unlawful presence you have accrued: more than 180 days followed by departure from the US leads to a 3-year reentry bar, and one year or more leads to a 10-year bar under INA 212(a)(9)(B). Many situations can still be fixed if you act before leaving and with the right strategy.

In short:

• Your authorized stay is determined by your I-94 (checked on the CBP website), not by the visa expiration date in your passport.
• The 3- and 10-year bars are triggered only when you leave the US. While you are in the country they do not apply, but the risks build up.
• Time under age 18, the pendency of a bona fide asylum application, and a timely filed I-539 generally do not count as unlawful presence.
• Immediate relatives of US citizens (spouses, parents, children under 21) who entered lawfully can generally apply for a green card inside the country despite an overstay.
• Risks increased in 2025–2026: NTAs after denials, arrests at interviews, the alien registration requirement. Decisions are best made before departure and before filing.

Unlawful presence: what it is and how it differs from a "status violation"

Unlawful presence is a legal term from INA 212(a)(9)(B). It means the time you spent in the US after your authorized period of stay expired or without a lawful entry. These are the days counted toward the 3- and 10-year bars.

A status violation is a broader concept. For example, an F-1 student who stopped attending school, or a B-2 tourist who started working, violates the terms of status. But unlawful presence generally starts accruing not at the moment of the violation but later — after the date on the I-94 or after an official finding to that effect (more below).

The distinction matters: a status violation can close off a change of status or extension, while unlawful presence can lead to a reentry bar after departure.

I-94 vs. visa: the difference and why it is the key question

The most common mistake is going by the date on the visa. The visa in your passport is only permission to travel to the border and request admission. It can expire while you are lawfully in the US, and that by itself is not an overstay.

The date until which you may remain in the country is shown on the electronic I-94 record (Arrival/Departure Record). It is created by the CBP officer at entry.

Example: a hypothetical situation. A person received a 10-year B-1/B-2 visa and entered on March 1. The I-94 shows an end date of August 31. If they remain after August 31 without a timely filed extension, the overstay begins, even though the visa is "valid" for another nine years.

How to check your I-94

1. Go to the official CBP website: i94.cbp.dhs.gov.
2. Select "Get Most Recent I-94."
3. Enter your details exactly as in the passport you used to enter: first name, last name, date of birth, passport number, and country of issuance.
4. Check the "Admit Until Date" field. If it shows a date, that is your deadline. If it says "D/S," see the section below.

If the record cannot be found or the date is clearly wrong, save screenshots and contact CBP Deferred Inspection for a correction. A CBP error at entry is corrected by CBP; an error in a USCIS approval is corrected through USCIS.

When unlawful presence begins: the I-94 date and the D/S rule

If your I-94 shows a specific date, unlawful presence begins the day after it. This applies to most tourists (B-1/B-2), H-1B, L-1, and O-1 workers, and other categories.

If your I-94 says "D/S" (duration of status) — typically for F-1 students and J-1 exchange visitors — the clock does not start automatically. Under the current approach, unlawful presence for D/S begins only after USCIS formally finds a status violation while adjudicating an application, or after an immigration judge's decision.

In August 2018, USCIS tried to change this rule and count students' unlawful presence from the day of the violation. On February 6, 2020, a federal court in North Carolina in Guilford College v. Wolf vacated this policy and barred its enforcement. So the earlier, more lenient approach still applies to D/S.

Important: in July 2026, DHS published a final rule eliminating D/S and setting a fixed period of stay for F-1 and J-1 (document 2026-14439), which was to take effect on September 15, 2026. On September 14, 2026, a federal court in Massachusetts postponed its effective date. As of October 15, 2026, the rule is not being applied, and students remain in D/S status. If the rule takes effect, students will have a fixed date on the I-94, and unlawful presence will be counted the same way as for other categories. More in our article F-1: new rules for 2026.

The 3- and 10-year reentry bars: how they work

The INA 212(a)(9)(B) bars are often called the 3-year bar and the 10-year bar. Key rules:

• 3-year bar: if you accrued more than 180 days but less than 1 year of unlawful presence and voluntarily departed the US before removal proceedings began.
• 10-year bar: if you accrued 1 year or more of unlawful presence during a single stay and then departed or were removed.
• The bar is triggered only by departure. While the person is in the US, the bar does not apply. That is why, for some categories, the solution is to apply for a green card inside the country without leaving.
• Counting is per stay. For the 3- and 10-year bars, days from different trips are not added together. The bar period begins on the date of departure.

If you accrued 180 days or less, there is no automatic bar. But a consular officer may deny your next visa on other grounds — for example, doubts about your intent to return (INA 214(b)). In addition, the 222(g) visa voidance rule applies (see below).

According to USCIS and the Board of Immigration Appeals (BIA), the 3- or 10-year period can run out even if the person later returned to the US. This is a narrow and, in practice, contested question; it should be analyzed only with an attorney based on specific dates.

The permanent bar under 212(a)(9)(C)

The permanent bar is a more serious situation. It applies to a person who:

• accrued an aggregate of more than 1 year of unlawful presence (here different periods are added together) and then entered or attempted to enter the US without inspection (for example, crossed the border illegally); or
• was removed and then entered or attempted to enter without inspection.

This bar is not removed by an ordinary waiver. Permission to reapply (Form I-212) can be requested only after 10 years outside the US. If you have such a history, any filing without an attorney is risky.

Periods that do not count as unlawful presence

The statute and USCIS policy provide exceptions. During these periods, days toward the 3- and 10-year bars do not accrue:

• Minors. Time under age 18 does not count (INA 212(a)(9)(B)(iii)(I)). This exception does not apply to the permanent bar under 212(a)(9)(C).
• Bona fide asylum application. While an asylum application (I-589) filed in good faith (bona fide) is pending, the time does not count, provided you did not work without authorization.
• Family Unity, VAWA domestic violence victims, trafficking victims — under specific conditions.
• Timely filed extension or change of status. If an I-539 (or an employer petition) was filed before the I-94 expired, is non-frivolous, and you did not work without authorization, the pendency period is generally treated as a "period of stay authorized." The statute guarantees at least 120 days of this "tolling" (INA 212(a)(9)(B)(iv)), and USCIS policy extends the protection to the entire pendency period.
• Pending I-485. While an application for a green card inside the US is pending, the time does not count as unlawful presence.

Important: if a timely filed I-539 is denied, unlawful presence generally begins on the date of the denial, not retroactively. But if the application was filed after the I-94 expired, there is no protection: the days run from the I-94 date. More on changing status in our article B-2 to F-1 change of status.

Visa voidance under 222(g)

A separate rule that is often forgotten. Under INA 222(g), if you stayed in the US even one day beyond your authorized period, your current visa automatically becomes void. This applies regardless of whether a 3- or 10-year bar was triggered.

The consequence: for a new visa, you will generally have to apply at a consulate in your country of nationality (with limited exceptions). If you overstayed even by a few days, do not try to enter on the old visa — check your situation first.

Waivers: I-601 and I-601A — who can be forgiven

The 3- and 10-year bars can be overcome with a waiver of inadmissibility. The general condition is proving extreme hardship to a "qualifying relative": a spouse or parent who is a US citizen or green card holder. Children of US citizens are not qualifying relatives for this waiver.

I-601A lets you obtain provisional approval without leaving the US and only then travel to the interview. This shortens the time apart from family. Main conditions: you are physically present in the US, you are 17 or older, you have an approved immigrant petition (usually I-130), you have paid the NVC fees, and the only ground of inadmissibility is unlawful presence. If there are other issues (for example, false statements or a removal), I-601A is not available.

Fees are per the USCIS fee schedule as of October 15, 2026. Check them against Form G-1055 before filing; more in our article USCIS fees 2026.

Overstay and a green card inside the US for immediate relatives

For immediate relatives of US citizens (spouses, parents of a citizen over 21, unmarried children under 21), the law makes an important exception. If you entered lawfully, with inspection (on a visa or parole), an overstay by itself does not prevent you from filing I-485 under INA 245(a). The 3- or 10-year bar is not triggered because you do not leave.

For other categories (employment-based, F2A, EB-2 NIW, etc.), an overstay generally makes filing inside the country impossible, with limited exceptions (for example, 245(k) for some employment-based categories).

Important: since May 2026, USCIS memo PM-602-0199 has been in effect, under which adjustment of status to a green card is treated as a discretionary benefit. The officer may take into account an overstay and intent at entry. DHS clarified that this is not a requirement for everyone to leave, but the case for a favorable decision has become more important. More in our articles adjustment of status inside the US and marriage-based green card.

Overstay in the US in 2026: what changed

The laws on the 3- and 10-year bars have not changed. Enforcement practice has.

NTAs after denials: PM-602-0187

USCIS memo PM-602-0187 of February 28, 2025, established that no category of removable individuals is exempt from the issuance of an NTA (Notice to Appear — a summons to immigration court). By default, when USCIS denies a case, it issues an NTA if the person has no lawful status. The practical takeaway: a weak or ill-suited filing during an overstay can lead not just to a denial but to a case in court.

Arrests at interviews

According to the USCIS annual review, from January 20 through the end of 2025 there were more than 2,400 arrests at USCIS offices. In November 2025 in San Diego, spouses of US citizens were reportedly detained at green card interviews, mostly because of overstays. The highest risk is for people with prior removal orders (including in absentia orders), entry without inspection, an overstay without eligibility to file inside the country, and any past arrests. More in our article USCIS interviews in 2026.

Alien Registration Requirement

Since April 11, 2025, a DHS interim final rule on registration has been in effect. Noncitizens who have been in the US for 30 days or more and are not already considered registered must file Form G-325R through a USCIS online account. Those who entered with an I-94, have an EAD or a green card, or are in removal proceedings generally do not need to register separately — even if their I-94 has expired. Individuals 18 and older must carry proof of registration.

For noncompliance, the law provides for a fine of up to $5,000 and/or imprisonment of up to 6 months. On April 10, 2025, a federal judge in Washington declined to block the rule. The outcome of the appeal as of publication (October 15, 2026) has not been confirmed.

Fines for failure to depart

It is important not to confuse the categories. Civil fines for failure to depart are tied to court decisions:

• up to $998 per day — for willful failure to depart after a final order of removal (INA 274D);
• from $1,192 to $9,970 — for failure to depart on time after voluntary departure granted by a judge.

The $5,000 fees under H.R. 1 (inflation-adjusted to $5,130 as of December 1, 2025; around October 16, 2026, ICE is raising them to $5,300) apply to people apprehended after entering between ports of entry and to people with an in absentia removal order. We found no separate fine simply for an overstay without a court order as of October 15, 2026.

The CBP Home app

DHS offers the CBP Home app for voluntary departure. According to DHS, those who use it get their flight paid, receive a cash stipend after their departure is confirmed (in January 2026 DHS announced $2,600 and noted the amount may be temporary), and have their failure-to-depart fines forgiven. DHS also states that such a departure "may preserve" the option to return legally in the future.

However, the 3- and 10-year bars are set by statute. Departing through the app does not cancel them: if more than 180 days or a year of unlawful presence has accrued, the bar will apply. Before leaving, assess whether you have a path to legal status inside the US that would be lost after departure.

Scenarios: what happens in typical situations

Overstayed your US visa: what to do now

1. Check your I-94 on the CBP website and save a printout. Note the exact "Admit Until" date.
2. Count your days of unlawful presence, taking the exceptions into account: age under 18, a filed I-539, asylum, I-485.
3. Compile your immigration history: all entries and departures, visas, filed applications, USCIS notices. If in doubt, request your records through FOIA.
4. Do not leave the US without assessing the consequences. Departure can trigger a 3- or 10-year bar and close off the path to a green card inside the country.
5. Do not file applications "just in case." Given PM-602-0187, an ill-suited filing can end in an NTA.
6. Check whether you need to register on Form G-325R, and carry proof of status or registration with you.
7. Do not work without authorization — it worsens nearly every scenario and can strip I-539 protection.
8. Discuss strategy with an immigration attorney, especially if there was a removal, an arrest, an unlawful entry, or a USCIS denial.

How M&M can help

• Situation review and document preparation. We help compile your immigration history, check your I-94, and prepare I-485, I-130, I-539, or waiver packages. Legal strategy is determined by our partner attorneys.
• Translation and notarization. Certified translation of documents for USCIS and an in-house notary at our Brooklyn office.
• A calm next step. Take a free assessment or contact us to discuss your situation.

Sources

• INA 212 (8 U.S.C. 1182) — grounds of inadmissibility, including 212(a)(9)(B) and (C)
• INA 222(g) (8 U.S.C. 1202) — visa voidance after an overstay
• CBP — I-94 record lookup
• USCIS — Form I-601A, Provisional Unlawful Presence Waiver
• USCIS — Alien Registration Requirement
• DHS — CBP Home
• IPTP — PM-602-0187 on NTA issuance
• American Immigration Council — Guilford College decision (2020)
• Fredrikson — court postpones the rule eliminating D/S (September 2026)
• ILRC — civil fines in immigration (2026)

This material is for informational purposes only and is not legal advice. M&M Document Preparation is not a law firm. Information is current as of October 15, 2026.