Can immigration put mein jail for overstaying on a visa?

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Can immigration put mein jail for overstaying on a visa?

I have recently tried to go to the US and while I was doing immigration in Miami they found out I had over stayed for a longer period that I was suppose to in the past. They made me stay in the immigration offices for 2 days and I was also threatened that if I would come back again they would put me up in jail for over 3 months. They didn’t tell me my rights, just gave me a bunch of papers to sign, and asked a lot of questions about my personal life (relatives living in the US, etc). Can they really put me to jail if I try to come back? and was it legal for them to do what they did to me?

Asked on January 29, 2011 under Criminal Law, Virginia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Overstaying a visa is not a crime in the US.  While it is a misdemeanor to enter the US without being processed, it is not a crime to be in the US illegally.  Therefore as a general matter, you cannot be jailed for trying to return.  You can however subject your self to civil penalties; for example removal and a ban on getting another visa.

Without knowing how long you overstayed your status, it is difficult to know what your rights are in terms of returning to the US.  Generally if you overstayed for 180 days or more, you are are subject to an automatic 3 year bar.  If you subsequently apply for a US Visitor Visa (B-1/B-2), you have to disclose on the application form your overstay in the US. If you fail to do so, you could be charged with misrepresentation and be subject to a 5 year bar or more. 

Note:  If you are subject to an overstay bar, you can still apply for a "waiver" of inadmissibility and be admitted despite your overstay. The waiver process would delay your US visa application but it is often the solution for applicants with prior immigration violations.

As for your 2 day detention, without knowing more of the facts of your case, its hard to advise as to its propriety/impropriety.  At this point, you should consult directly with an immigration law attorney.  They can best advise you on your situation based on the specific facts of your case.

Related article: Removal or Deportation


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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