Getting a Work Permit With an Overstayed Tourist Visa
Overstaying past your visa’s expiration can result in severe immigration consequences. This article provides information about how a foreign national who entered the U.S. on a tourist visa (B-1 or B-2) may qualify for a work visa. We will explain the mechanics of applying for a work visa, and describe the process of maintaining lawful status in the U.S. while awaiting your work visa.
What Does “Overstay” Mean?
In most immigration contexts, to overstay means to remain in the U.S. past the expiration date that is listed on your Form I-94 Arrival/Departure record. Prior to April 2013, the Customs and Border Protection (CBP) officer who admits the foreign national will gave that person an I-94 card stamped with a date. That date is the date on which your lawful B-1 or B-2 status in the U.S. expires. After this date, most nonimmigrants will no longer receive a paper I-94 and will be able to access that record online instead.
For example, let’s say you are a Russian citizen. You come to the U.S. in B-2 status on January 1, 2013. At the port of entry, the CBP officer issues you Form I-94 that states your status is valid through June 1, 2013. You must, unless you receive an extension, leave the U.S. on or before June 1, 2013. If you do not leave the U.S. within that time frame, you may begin to accrue unlawful presence (discussed in detail below).
How Can I Avoid Overstaying?
In order to avoid overstaying, you can either depart the U.S. before your status expires, apply to extend your status, or apply to change your status (i.e. obtain a work visa) in the U.S. during the validity period of your current status.
Since you are not authorized to work in the U.S. while on B-1 or B-2 status, you must change your status to one that allows you to work in the United States. (You file this application with United States Citizenship and Immigration Services, or “USCIS”). If you file your change of status application, you are deemed to be maintaining lawful status while your application is pending, even if your B1/2 status expires.
You must apply to change your status before the expiration date on your I-94. (To be clear, USCIS must RECEIVE your petition by that date – it is not enough that the petition is postmarked by that date.)
If USCIS receives your petition to change status on May 1, 2013, but doesn’t approve it until July 1, 2013, you are still deemed to be maintaining lawful status even during the gap in time between the date your B1/2 status expired (June 1, 2013) and the date of the USCIS approval (July 1, 2013).
Please note that while you may be in lawful status during the time period before your petition for a work visa is approved, you do NOT have work authorization in the U.S. yet. You must wait until you receive the approval before you can begin working.
How Can I Get a Work Visa?
There are several different types of work visas that may be available to you based upon your qualifications and immigration situation.
One visa that many foreign workers pursue is the H-1B visa. The H-1B allows a foreign worker to temporarily work for a U.S. employer in a specialty occupation (please see our additional articles on "H-1B Visas for Temporary Specialty Workers").
To apply for an H-1B, your employer must file an I-129 petition with USCIS. In this petition, your employer will note that you are already in the U.S. in B-1 or B-2 status, and will ask that USCIS do two things: (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 type of work visa that may be available to you is the O-1. The O-1 allows a foreign worker who possesses extraordinary abilities to work for a U.S. employer temporarily. Similar to the H-1B, to apply for an O-1, your employer must file an I-129 petition with USCIS, and ask USCIS to grant you a change of status and an extension of status. See "O-1 Visa for Extraordinary Talent in Science, Arts, Education, Business, or Athletics."
There are multiple other work visas that you may qualify for. The most important concept to bear in mind, no matter what visa you apply for, is that you must file your petition before your B status expires.
What Happens if My Visa Expires and I Accrue Unlawful Presence?
You will begin to accrue unlawful presence if you overstay your visa and fail to timely file a petition to change your status.
Accruing unlawful presence can result in severe immigration penalties. Specifically, if you accrue more than 180 continuous days but less than one year of unlawful presence, once you leave the U.S. you will be barred from re-entering the U.S. for a period of three (3) years. Additionally, if you accrue one year or more of unlawful presence, you will be subject to a ten (10)-year bar to reentry once you leave the United States.
There are certain waivers that are available that lift these bars and allow the foreign national to enter the U.S. even if he or she would otherwise be subject to the bar. However, these waivers can be highly complicated and require a sophisticated understanding of the applicable laws and regulations. Consult a lawyer for a full analysis.