Denied a Visa Extension? Here’s How to Avoid Deportation and Removal
Shawn Sedaghat, Esq.
Have you recently been denied a visa extension? If so, you may be concerned about the possibility of deportation and removal after denied visa extension. Fortunately, there are steps you can take to avoid this situation and remain in the United States. In this article, we’ll walk you through the key details of what happens after a visa extension denial, what options you have, and how to protect yourself from being placed in removal proceedings.
If you’re worried about overstaying your visa or being removed from the U.S., keep reading! We’ll help you understand the process and guide you through what to do next.
What Happens When Your Visa Extension is Denied?
Let’s say you’ve applied for a visa extension, hoping to stay in the U.S. a bit longer to visit family or attend an important event. However, your extension is denied. Now what? When your visa extension is denied, things can escalate quickly if you don’t take action.
Once your visa extension is denied, you are no longer in lawful status, meaning you can start to accrue unlawful presence. If you don’t leave the U.S. promptly or resolve your immigration status, you risk being placed in deportation proceedings.
Understanding Visa Extensions
A visa extension allows you to extend your stay in the U.S. beyond your authorized period, which is typically six months for most visitors. To extend your stay, you need to file Form I-539, Application to Extend/Change Nonimmigrant Status, before your visa expiration date. If this application is denied, you must leave the country as soon as possible.
But what if you don’t leave? Here’s where things get complicated. You’ll not only accrue unlawful presence, but you also face the risk of deportation.
The Consequences of Denied Visa Extension
When your visa extension is denied, several things can happen:
- Unlawful Presence: If you remain in the U.S. after your visa expires, you begin to accrue unlawful presence. Staying unlawfully for more than 180 days can lead to a three-year ban on reentering the U.S. If you overstay for more than a year, you could face a ten-year reentry ban.
- Deportation Proceedings: If your visa extension is denied and you continue to stay, U.S. Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE) can issue a Notice to Appear (NTA), placing you in removal proceedings. This means you’ll have to go before an immigration judge. This immigration judge will decide if you should be deported from the U.S.
- Deportation Order: If an immigration judge issues a deportation order, you will be required to leave the country. Ignoring this order can result in being forcibly removed and facing even more significant challenges when trying to return to the U.S.
Avoiding Deportation After a Visa Extension Denial
The good news is that there are ways to avoid deportation even if your visa extension was denied. Let’s explore your options.
Option 1: File for Adjustment of Status
If you are eligible for a green card (let’s say, you can now become a permanent resident), you can file for adjustment of status. This allows you to stay in the U.S. while your green card application is processed. For example, if you have a family-based immigrant petition or an employment-based immigrant petition, you can apply to adjust your status to that of a lawful permanent resident to obtain immigration benefits.
To do this, you need to file Form I-485, Application to Register Permanent Residence or Adjust Status. Keep in mind that if your visa extension was denied because of issues related to fraud or criminal activity, your eligibility for an adjustment of status might be affected.
Option 2: Apply for a Waiver
Another option is to apply for a waiver of inadmissibility if your visa was denied due to a specific ground of inadmissibility, such as unlawful presence. A waiver can allow you to overcome the issue and continue your immigration process. You will need to demonstrate that denying your stay in the U.S. would cause extreme hardship to a U.S. citizen or lawful permanent resident relative.
Option 3: Voluntary Departure
If your visa extension has been denied, and you don’t want to risk deportation proceedings, you can choose to voluntarily depart. Voluntary departure allows you to leave the U.S. on your own terms before a deportation order is issued. This option is often less damaging than being deported because it does not carry the same automatic reentry bans. However, if you do not leave by the deadline, you could face penalties, including a removal order.
Option 4: Seek Help from an Immigration Lawyer
Navigating U.S. immigration laws can be overwhelming, especially if you’re trying to avoid deportation. Working with an experienced immigration attorney is critical at this stage. An attorney can help you explore your options, including potential waivers, appeals, or adjustment of status. They can represent you in immigration court if necessary and help ensure the best possible outcome.
What To Do If You’ve Already Received a Notice to Appear
If you’ve already been served with a Notice to Appear (NTA), you will need to attend a hearing in front of an immigration judge. This is the start of deportation proceedings, where the judge will decide whether you should be removed from the U.S.
Here’s what you can expect in immigration court:
- Master Calendar Hearing: This is a preliminary hearing where the judge explains the charges against you, and you’ll have the opportunity to respond. You can also ask for more time to find legal representation if you don’t have an immigration attorney yet.
- Merits Hearing: If your case proceeds, you’ll have a merits hearing where you’ll present evidence to argue why you shouldn’t be deported. Your immigration lawyer can help present your case and offer any defenses available under U.S. immigration laws.
If you do not attend your court hearing, you risk being ordered deported in absentia, which means you’ll be removed without even being present at the hearing.
How Unlawful Presence Affects Your Future Immigration
When your visa extension is denied, and you stay in the U.S. without authorization, you are considered to be in unlawful presence. This can have severe consequences for your future immigration options, including:
- 3-Year Reentry Ban: If you accrue more than 180 days but less than one year of unlawful presence, leaving the U.S. voluntarily triggers a three-year ban on reentry.
- 10-Year Reentry Ban: If you stay unlawfully for more than one year, you’ll face a ten-year reentry ban when you leave the U.S.
These bars can make it extremely difficult to return to the U.S. legally unless you are granted a waiver of inadmissibility or another form of relief.
Conclusion: Act Quickly and Stay Informed
Getting your visa extension denied can feel stressful, but it’s important to act quickly to avoid deportation and removal after denied visa extension. Whether you pursue an adjustment of status, apply for a waiver, or voluntarily depart the U.S., staying informed and working with an experienced immigration attorney will give you the best chance of resolving your immigration situation.
Remember, ignoring the denial or remaining in the U.S. without legal status could result in severe consequences, including deportation, a removal order, and lengthy reentry bans. So, take action today to explore your options and protect your future in the U.S.
FAQs
1. What happens if my visa extension is denied?
If your visa extension is denied, you will need to leave the U.S. as soon as possible to avoid accruing unlawful presence. If you remain in the U.S. without authorization, you risk being placed in deportation proceedings and facing reentry bans.
2. Can I appeal a denied visa extension?
In some cases, you may be able to appeal the denial of your visa extension. It’s best to consult with an immigration attorney to determine your options based on the reasons for the denial.
3. What is a Notice to Appear (NTA)?
A Notice to Appear (NTA) is a document issued by U.S. immigration authorities that places you in removal proceedings. This means you’ll need to appear in immigration court to resolve your immigration status.
4. What is unlawful presence?
Unlawful presence refers to staying in the U.S. without legal authorization. If your visa has expired or your visa extension was denied, and you remain in the U.S., you are accruing unlawful presence. This can lead to reentry bans of 3 to 10 years or more.
5. How can an immigration attorney help me?
An immigration attorney can guide you through your options after a visa extension denial, including filing for adjustment of status, applying for waivers, and representing you in immigration court.