Overstaying a Non-Immigrant Visa & the Legal Rule Against Consular Shopping
If you have a non-immigrant visa to stay in the U.S. for a temporary period, you should make sure that you know the length of your authorized stay. You can find it on your I-94 document, which is available online at the website of the Customs and Border Protection agency. Staying slightly beyond the allowed time period can result in adverse consequences, even though immigration authorities are not likely to forcibly remove you from the U.S.
Sometimes a foreign national will be able to extend the length of their visa by filing an extension application with USCIS. This involves submitting Form I-539 before your current authorized stay expires. Many foreign nationals who are working for a foreign employer in the U.S. apply for extensions if their employer needs them to continue handling a project related to their job. Unfortunately, the USCIS review process is lengthy and often delayed. If USCIS approves your application for an extension after your current authorized stay ends, the extension will provide uninterrupted coverage from the end of the current authorized stay. (In other words, there are no gaps.) If USCIS denies your application for an extension after your current authorized stay ends, you must leave the country promptly to avoid violating immigration laws.
Consular Shopping Bars
If you remain in the U.S. beyond your authorized stay, and no application for an extension is pending, a consular shopping bar may take effect. This is a rule that requires a foreign national to apply for a new visa to the U.S. at a U.S. consulate in their home country. Meanwhile, your current visa is canceled. The consular shopping bar thus ended the common practice of traveling to Mexico or Canada to get a new visa or authorized stay at a U.S. consulate in one of those countries. Now, a foreign national from a country other than Mexico or Canada can take this shortcut only in extraordinary circumstances.
You would need to explain these circumstances in a letter to the consulate. For example, perhaps you lost your legal status in the U.S. through no fault of your own. Or perhaps you were prevented from changing your status to a visa such as the H-1B visa only because of the cap for that visa type, rather than because you were ineligible for the visa.
You will not run into the consular shopping bar if you stayed in the U.S. while awaiting a decision on your application for an extension. The only situation in which a foreign national may face a problem is when USCIS finds that they had no legitimate basis for seeking an extension and filed a frivolous request.
Exceptions to Consular Shopping Bars
A consular shopping bar does not cover people who used the visa waiver program to enter the U.S. It also does not apply to foreign nationals who received permission to stay in the U.S. for a time period known as “duration of status.” People in this category usually are students with F visas and exchange visitors with J visas. They can stay in the U.S. throughout the duration of the program that forms the basis of their status. The consular shopping bar will apply to them only if they get a job in the U.S. or otherwise violate the terms of their visa.
If you receive temporary protected status in the U.S., you will not be subject to a consular shopping bar. You will be subject to the bar if you are seeking asylum or if you arranged for voluntary departure.
