Under existing law, every person who legally enters the United States enters as either an “Immigrant” or as a “Non-Immigrant.” “Immigrants” are people entering the United States with a stated intention to move here permanently and “Non-Immigrants” are people who are entering lawfully for some temporary purpose and who have stated that they do not wish to move to the United States permanently.
Someone entering the United States as an Immigrant might be:
- The spouse, fiancée, or child of an American Citizen
- Certain highly skilled foreigners being sponsored by an employer
- Foreign investors, executives, job creators.
Someone entering as a nonimmigrant might be:
- Someone entering the U.S. to engage in tourism
- Someone entering the U.S. to get a medical procedure
- Someone entering the U.S. to study at a University
- Someone entering the U.S. to visit relatives living here
The U.S. is a wealthy, powerful, prosperous, and relatively safe nation. Because of this, it is presumed that everyone entering the U.S. intends to immigrate. Those who seek a nonimmigrant visa must overcome this presumption of immigrant intent 1 as part of the application process. This is normally done by demonstrating significant ties with and the ability to return to the home country, for example, a job, property, and family in the home country, return airline tickets, etc.
Where an applicant for a nonimmigrant visa cannot overcome the presumption of immigrant intent the application for a nonimmigrant visa will be denied.
The citizens of 38 similarly wealthy, powerful, prosperous, and relatively safe nations can enter the United States as nonimmigrants and stay for up to 90 days without obtaining a visa under the visa waiver program 2.
When someone presents themselves at a lawful point of entry into the United States and shows a valid passport and visa to Immigration Officials, that legal term for what is going on is Inspection. Someone who has been, after Inspection, allowed entry into the United States is said to have Entered with Inspection.
Entering the United States, or for that matter any country, without Inspection is a crime sometimes referred to as illegal immigration.
When a nonimmigrant is allowed into the United States they will be issued a Form I-94, which sets forth how long they are allowed to stay in the United States. This is called the nonimmigrants Period of Authorized Stay. This time period is usually shorter than the time for which their actual visa will be unexpired. This means that most newly issued visas can be used to enter the United States several times.
While the nonimmigrant visa is unexpired, if the nonimmigrant wishes to stay beyond the authorized period of stay without returning home and/or wishes to change the purpose of the stay to another purpose that is lawful for nonimmigrants he or she can apply to extend or change their nonimmigrant status on USCIS form I-539 3.
If the nonimmigrant stays beyond longer than the un-extended period of authorized stay, or beyond the expiration date of their visa the nonimmigrant is said to be Out of Status and will begin accruing Unlawful Presence time. This category of nonimmigrants are sometimes referred to “Overstays.”
A nonimmigrant can accrue up to 180 days of unlawful presence without incurring serious sanction. Where the immigrant has more than 180 days but less than one year of unlawful presence he or she will be inadmissible and will not be allowed back in the U.S. for three years. Where the nonimmigrant accrues one year or more of unlawful presence during a single stay, he or she will be inadmissible for ten years 4.
For a variety of reasons, overstays are generally seen as less problematic than people who enter without inspection. For one, the overstay did comply with all of the requirements to be lawfully admitted in the first place. Additionally, because USCIS keeps records of all legal entries into and exits from the United States, the government knows exactly who the overstays are, where they came from, how long they have overstayed, etc. etc. In many cases the overstay may not be able to read or understand the language in which his or her I-94 or other immigration documents are written.
Contrast the overstay with people who enter without inspection. If the overstay is analogous to the guest that won’t leave at the end of the party, what is a proper analogy for those who enter without inspection? This is quite a contentious topic at present, but the analogies that come to mind are reflective of the sometimes feigned, sometimes actual, outrage with which some commentators approach illegal immigration.
4 Immigration and Nationality Act, § 212(a)(9)(B)(i)(I) and (II).