Violating the terms of a tourist or visitor visa (B-1 or B-2), including overstaying the permitted duration in the U.S., can lead to severe immigration repercussions. Specifically, B visa overstay, such as obtaining a tourist visa with the intention of securing employment and staying in the U.S., is ill-advised. This action may prompt U.S. immigration authorities to accuse individuals of misusing their tourist visas, potentially resulting in the denial of future immigration applications.

However, certain limited circumstances may permit a foreign national initially entering the U.S. as a tourist to seek a change of status for obtaining a work visa, sponsored by a U.S. employer. This article will elucidate the procedures for applying for a U.S. work visa and detail strategies for maintaining lawful immigration status in the U.S. and avoiding an “overstay” while awaiting approval.

What Is an “Overstay”?

In immigration, overstaying means staying in the U.S. beyond the date on your Form I-94 Arrival/Departure record. Before April 2013, a CBP officer would give a stamped I-94 card with the expiration date. Now, most visa holders access it online. For example, a Russian citizen enters on January 1, 2023, with a B-2 visa valid until June 1, 2023. If they don’t leave by then, they start accruing unlawful presence.

What steps can I take to prevent overstaying and engage in lawful employment in the U.S.?

To prevent overstaying your allotted time in the U.S., you have several options: depart before your status expires, apply for an extension of your immigration status, or seek a change of status, ideally obtaining a work visa during your current status’s validity period.

As employment is not permitted while on B-1 or B-2 status, you must transition to a status that allows employment in the U.S. When you submit a change of status application, you maintain lawful status while awaiting USCIS’s decision, even if your B-1/B-2 status expires during this period.

However, several steps must be completed before requesting a change of status for employment, outlined in the following.

Obtaining a U.S. Work Visa

Various work visas may be accessible to you, contingent on your qualifications, immigration circumstances, and the fortune of securing a U.S. employer willing to sponsor you.

Among the sought-after visas is the H-1B, enabling foreign workers to engage temporarily in specialized occupations with U.S. employers.

To initiate an H-1B application, your employer must file an I-129 petition with USCIS, specifying your existing B-1 or B-2 status and requesting USCIS to undertake two actions:

1. change your status to that of H-1B, and
2. extend your status for a specified period of time (usually three years) so that you can work for the employer.

Another work visa option available to some individuals is the O-1 visa, designed for foreign workers with exceptional abilities to temporarily work for a U.S. employer. Similar to the H-1B process, your employer must submit an I-129 petition to USCIS for an O-1 visa, seeking both a change and extension of immigration status for you.

Various other work visas may also be suitable for your situation. The crucial aspect to remember is that you must submit your petition prior to the expiration of your B status. If you anticipate a job opportunity, it is advisable to consult with an attorney promptly.

Implications of Exceeding the Duration of B Visa

The following are some of the primary results of overstaying a visa in the USA:

• Facing a three- or ten-year ban from re-entering the US due to accruing unlawful presence during the overstay period
• Experiencing limitations on extending stay or changing status
• Invalidating your current visa
• Ineligibility to secure a new visa except in your home country
• Inability to adjust status while in the US

Ineligibility Resulting from B Visa Overstay

When a foreign national exceeds their authorized stay period, as determined by the I-94 record issued by CBP or the status expiration set by USCIS after an extension or change of status, they begin accumulating “unlawful presence.”

a. Three-Year Bar: Individuals who accumulate unlawful presence for more than 180 days but less than one year, and depart the US before any removal proceedings commence, are barred from re-entering the US for three years from their departure date.

b. Ten-Year Bar: Individuals who accrue unlawful presence for more than one year, and depart the US before any removal proceedings start, face a ten-year re-entry ban from their departure date.

Prohibition Resulting from Visa Overstay in the US

Foreign nationals who exceed their authorized stay in the US typically cannot prolong their stay or change to another nonimmigrant status. Moreover, they are generally ineligible to transition from nonimmigrant to immigrant status.

NOTE: If a foreign national submits a timely Extension of Stay, Change of Status, or Adjustment of Status application before their authorized stay expires, they remain in a period of “authorized stay” until the application is adjudicated, even after the I-94 expiration. Unlawful presence only accrues if the application is denied.

Cancellation of Visa Due to Overstay

The visa of any foreign national who overstays their authorized stay is automatically revoked or invalidated. Even overstaying by one day renders the existing visa void. A foreign national who overstays may not re-enter unless they obtain a new nonimmigrant visa from their home country.

NOTE: Individuals entering on Visa Waiver and overstaying, even by one day, are ineligible to use Visa Waiver for subsequent US trips. They must secure a B-1/B-2 visa for future visits to the US.

Prohibition on Consulate Shopping Due to Overstay

Foreign nationals who overstay must obtain any future visa from their home country or country of residence. If there is no US Consulate in their home country, the Secretary of State may designate a third country for visa application.

There exists a narrow exception to this rule. If a foreign national can demonstrate ‘extraordinary circumstances,’ they may be permitted to apply for a visa at a Consulate in a third country, subject to the consent of the third country’s Consulate before scheduling an appointment and submitting a nonimmigrant visa application.