4 days ago
US visa rules: Even a 3-day overstay can lead to arrest, 10-year ban
Even a short overstay in the US could get you detained and even face a 10-year ban. That's what happened to Thomas, a 35-year-old Irish tech worker and father of three, who was detained by US immigration officials after overstaying by three days due to a medical issue, The Guardian reported.
According to the daily, Thomas had travelled to West Virginia under the visa waiver programme in autumn 2024 to visit his girlfriend. He had used the waiver many times before, which permits citizens of certain countries to stay in the US for up to 90 days without a visa.
He had planned to return to Ireland in early December, but a torn calf muscle delayed his travel. A doctor advised him against flying for at least eight weeks to avoid blood clots, and Thomas said he tried to notify US authorities and seek an extension, but did not receive a response in time.
Three days after his authorisation expired, a police encounter in Georgia landed him in Immigration and Customs Enforcement (ICE) custody.
100 days in ICE detention
What followed was unexpected. Despite agreeing to deportation from the outset, Thomas was held for roughly 100 days in three separate ICE facilities, including time in a federal prison for criminal defendants, though his only violation was overstaying his tourist authorisation.
'Nobody is safe from the system if they get pulled into it,' said Thomas, speaking to The Guardian from his home in Ireland. He requested a pseudonym due to fear of further repercussions.
Thomas was deported in March 2025 and banned from re-entering the US for 10 years.
His experience comes as more travellers, including those from countries such as Australia, Canada, Germany, India, and the UK, have reported detentions by ICE, even when they hold valid visas or green cards. In April, an Irish green card holder was held for 17 days over a decades-old conviction.
What Indian nationals should know
Unlike Irish or British citizens, Indians are not eligible for the US visa waiver programme. Most Indian tourists travel on a B-1/B-2 visa, which comes with stricter conditions.
If you're visiting the US and need to stay beyond your authorised date, it's important to understand the process and timelines for extensions.
Adesh Nandal, advocate at Jotwani Associates, said that under US immigration law, even a short overstay, such as three days, can count as a violation. 'However, context and intent matter significantly, particularly in cases involving humanitarian factors like medical emergencies,' Nandal told Business Standard.
Steps to apply for a tourist visa extension
Indian nationals on B-1/B-2 visas who need to stay longer must apply for an extension before their authorised stay expires. This date is recorded on the I-94 form, not the visa sticker in the passport.
Here's what to do:
Check the I-94 expiry date on the official CBP website
File Form I-539 with USCIS (online or by post)
• Application fee: $370
• Biometric fee: $85
Provide documents such as:
• A letter explaining the reason for extension
• Medical records (if applicable)
• Copy of passport and visa
• Proof of financial support
• Evidence of ties to India (job, family, assets)
Once the application is submitted, the applicant may stay in the US legally while it is under review—even if the I-94 expires in the meantime. If denied, they must leave immediately.
What if you're detained after an overstay?
Thomas's experience underlines the risks. He was visiting Savannah, Georgia, when a hotel guest overheard a personal dispute between him and his girlfriend and called the police. That incident, combined with his expired travel authorisation, triggered ICE action.
According to Nandal, ICE has discretion over detention. 'Detention is not mandatory, especially for first-time, short-term overstays where the individual poses no flight risk or security threat,' he said.
Even when the overstay is due to documented medical issues, detention can still happen. 'In such cases, access to legal counsel and consular assistance becomes critical in protecting the individual's rights and ensuring due process,' Nandal added.
Legal options if detained
An individual detained under these circumstances may:
• Request a bond hearing to argue for release
• Seek humanitarian parole or deferred action from ICE
• File for relief from removal, presenting medical records and proof of good character
• Apply for a waiver of inadmissibility under INA § 212(d)(3)
• Contact the Indian Embassy for assistance under the Vienna Convention on Consular Relations
'Legal representation is a right, although not publicly funded. An experienced immigration attorney can significantly improve the outcome,' said Nandal.
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