Visa Overstays in Immigration Court: What to Know

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If you overstayed your visa and wind up in immigration court proceedings, you are not alone.  Tens of thousands of immigrants overstay their U.S. visas, for all sorts of reasons.  Maybe they started a family in the U.S., and cannot leave them behind.  Maybe they cannot earn a living in their home countries, or maybe they are afraid to return.

If you have overstayed your visa, or fallen out of status, you may one day find yourself placed in deportation proceedings.  If that happens, there are various ways to fight your deportation through the immigration court process.

Why Visa Overstays Sometimes Go to Immigration Court

If you have stayed too long on your visa, then you are no longer in lawful immigration status, and you are therefore subject to deportation from the United States.  That does not mean that you will be deported.  It means that the government has a right to place in you in deportation proceedings.  The are several steps you can take to prepare for your immigration court hearing.  And there are ways to fight your deportation, as we’ll discuss below.

How does it happen that a visa overstay ends up having to go to immigration court?

There are a number of situations.

Ways in Which Visa Overstays End Up In Immigration Court

  • You receive in the mail a paper called a Notice to Appear
  • You are arrested for a crime, and you are picked up by immigration officials
  • You apply for an immigration benefit and you are denied
  • You are arrested at your home, school, or place of work and given a Notice to Appear

What Happens to Visa Overstays In Immigration Court

You’ll know you have to go to court when you get your Notice to Appear and hearing notice.  (The hearing date and place can change, so make sure to check your immigration court hearing date.)

When you go to immigration court, the first thing an immigration judge will do is to make sure that you have read and understand why you are being charged with deportability from the United States.  If the charging documents are correct, they will say that you entered on a visa, but you violated the terms of your visa by staying beyond the authorized period.

The Notice to Appear may allege facts that look something like this:

And a legal charge that looks something like this:

Visa overstay charge

The immigration judge will want to know how you respond to the charge. You are not required to admit that it’s correct.  In fact, if you entered the United States on visa, the government is required to proof the charge of deportability.

In any event, it is wise to consult with an experienced immigration attorney on how to respond to the charges that you overstayed your visa.  You will also want to take a few other important steps to preparing for your case.

How Visa Overstays Can Fight Deportation

Even if you stayed too long on your visa, there are specific ways to fight your deportation and stay in the United States permanently.  But you should also read up on general ways to prepare for your immigration court hearing.

Fixing your papers through a marriage or child

Very often, immigrants who enter on visas end up marrying someone with legal status.  If your spouse is a U.S. citizen, and if your spouse files an I-130 petition for you, you can ask the immigration judge for something called Adjustment of Status.  If you

Or, perhaps, you have a U.S. citizen child or stepchild who has turned 21 years of age.  If your child petitions for you, you can also seek Adjustment of Status.

Requesting asylum, withholding of removal, or protection under the Convention Against Torture

Many visa overstays cannot return to their home countries for fear of persecution or torture. If you are afraid to return, you may qualify for asylum or related relief.  To win asylum, you have to prove to the immigration judge that you have a well-founded fear of persecution on account of your race, religion, nationality, political opinion, or membership in a particular social group.  To win protection under the United Nations Convention Against Torture, you have to prove that you will probably be tortured by, or with the consent or acquiescence of, a public official in your home country.

Asylum is a very complicated area of law. So if you are afraid to return to your home country, you are best-advised to find an experienced immigration attorney to help with your case.

Cancellation of Removal

If you have lived in the United States for at least 10 years, and you have a U.S. citizen or permanent resident spouse, parent or child, you may want to consider applying for cancellation of removal.  But be warned: it is very, very difficult to win.  An immigration judge will only grant this form of relief if you can prove that your deportation will cause your child, parent, or spouse to suffer “exceptional and extremely unusual hardship.”  This is a very hard thing to do.

Still, if you are a visa overstay in deportation proceedings, you should check whether you are eligible for cancellation of removal.

Other types of relief for visa overstays

There are various other types of relief for visa overstays, including those who were victims of domestic violence (VAWA), as well as for victims of certain crimes that cooperate with law enforcement authorities (U Nonimmigrant Status).

If you find yourself in immigration court proceedings, you should consult with an experienced immigration attorney to learn more about your options.  If you can’t find an immigration attorney, or cannot afford one, at the very least you should ask the immigration judge what options you have to remain in the United States.

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