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Can you get a tourist visa extension after overstay?

Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss whether you can file an application to extend your stay on a tourist visa if you have overstayed.

Disclaimer: We do not recommend overstaying your duration of stay on any visa classification, because serious immigration consequences could result. However, this post discusses the options you may have, if you find yourself in the precarious situation where you have already overstayed, and you have a good faith reason for having overstayed.

Overview:

Typically a person is given up to a 6-month period to remain in the United States on a tourist visa. At the end of those 6 months, the foreign national must depart the United States. The question is: are there any special circumstances in which a person may be allowed to extend their stay, where they have overstayed their visa?

In this case, the person stayed past the 6-month period of time allowed in the United States, and did not depart the United States. However, the person had a good faith reason for remaining in the United States. Toward the end of their stay, the individual had just given birth in the United States, and unfortunately some medical complications occurred that kept the individual in the United States past the 6-months authorized by their tourist visa. Because of these complications, the individual could not fly outside of the United States.

Despite the 2 month overstay, our office was able to successfully file for and extend our client’s duration of stay in the United States. We filed our client’s extension application with a note from the applicant’s doctor explaining the medical condition, treatment plan, and reasons for which the applicant could not travel outside of the country. USCIS responded with a request for evidence asking for more information regarding the reasons the applicant could not depart the United States. Our office promptly responded to the request for evidence and provided more documentation showing why the applicant could not travel including additional medical records, as well as an expert letter from a physician specializing in the specific medical condition, explaining that under the circumstances, the patient could not have traveled outside of the country during the time the visa expired. With this evidence, USCIS ultimately approved our client’s extension application. However, it is very important to note that an approval is not guaranteed in every situation, even where a serious medical issue is involved, but typically with tourist visa overstays, a medical emergency could be a good reason to file for an extension even after the overstay has occurred, where that medical emergency or circumstance is well documented.

Although an approval may not be guaranteed, filing based on a medical emergency could provide relief to the applicant, because if the applicant were to depart the United States without first trying to apply for an extension, more serious consequences could result such as a bar to re-entry and other inadmissibility issues.

Other grounds for seeking an extension after an overstay could be a serious business necessity and/or emergency requiring the applicant to remain in the United States, or risk losing a substantial amount of capital, substantial investment, or business opportunity, so long as that business emergency is well documented and enough evidence can be provided as evidence of the seriousness of the emergency.

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