I overstayed I94 4 months and 17 days on H1B visa

I am working with H1B visa, I accidentally over stayed my I94 for 4 months and 17 days, as soon as I came to know this I came back to India will this be an issue for my stamping ,

On 2015 Jan 1st I entered USA I had my VISA stamped till 15 Sep 2017, I switched to a new company as direct employee on 2016 July so I got new I797 valid till May 2019, after that I traveled to INDIA on Dec 2016 and when I came back to USA I didn’t get stamping because my old VISA was valid for more than one year,

the issue here was when I entered USA I got my I94 extended only till July 22 2018 because of my passport expatriation date, but my I797 is valid till May 30 2019,

I was in assumption I can stay till my I797 valid date, I didn’t get my I94 renewed once I got my new passport,
Once I came to know I can’t stay with I797 date I immediately left USA at Dec 7th 2018.

My employer said you need to go for stamping with the current I797 which is valid till 30th may 2019,

  1. I like to know will this be a problem in Visa interview ?
  2. Is there possibility of getting rejected ?
  3. Will this be an issue in port of entry even if I get my Visa stamped ?
  4. Should I do any thing additional for Visa interview ?.


Over staying i94 is counted as OUT OF STATUS time

Yes to all your questions.

Over-staying your i94 validity is counted as ‘Out of Status’ time and you have 4 months 17 days.
They CAN question you at every point about WHY you overstayed.

You do have a valid reason that your passport expired and you did not realize that your i94 date was matched to passport expiry.

It depends on the visa officer at US embassy visa interview, immigration officer at US port of entry and CBP officer at US airport to believe you and take appropriate action.

Thank you for quick replay.


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I have few more questions,

Every where the talk about if you have overstayed more than 6 months to 1 Year you will be bared for 3 years and overstayed more than a year you will be bared for 10 years, but what happens when a Non Immigrant overstayed less than 6 months?.


For each future visa application, you will have to explain why you overstayed.

Visa officer can deny your application at US embassy based on your overstay history.

Immigration officer at US port of entry can deny you entry based on your i94 overstay.

Anything can happen.

thank you for the quick reply

HI Anil,

I was lucky this time I was able to enter USA after my VISA stamping, so when they ask have you overstayed your VISA is it same as Overstayed I94 ?. or Visa overstay is different from I94 overstay.

I overstayed my I94 but not my I797 so what would be the correct answer ?


Overstay after i94 expiry is your visa overstay.

Ok, after the overstay of 4 month I went to india and got my visa stamped and returned back to USA, now my new employer is ready to file green card so, since I am currently under lawful stay will it still be an issue ?

We don’t know what decision the green card case officer will take.

But, they do look at your previous cases.

What kind of question did they ask you ? how did you manage to get Visa stamping and POE please ?

Sorry didn’t see your message, there was no question , just saw my documents and stamped new Visa, every thing was smooth in port of entry also

Hello Sir, I am also in the same situation. My i797 is valid till March 8, 2021 but my i94 got expired in Nov 22, 2020 since my passport expired on that day. I was under assumption that my stay is authorized till March 8. During extension process only we realized it and I am travelling back to India to apply for cap exempt H1B. Can you please let me know what was the justification you mentioned in the DS-160?


I believe I mentioned the same reason, explaining accidental overstayed because you thought i797 is valid. and I was ok in visa interview they didn’t ask any questions related to overstay, if you didn’t overstay 5 months or more then it is up to the interviewer to decide.

In interview if they ask alone just say it was accident and soon as you know you left country, don’t give much details which will lead to more questions, and do not give wrong information at any stage, just honestly say you misunderstood i797 validated.

This seems to be a problem we don’t understand the complete rules and what document is valid at what time, my employer said it was ok if i797 was valid which was not.

I was in same situation were I ended up overstaying my visa for 10 mo as my i-94 had an expiration of my passport and not of my I-797A and it came to attention while filing for my GC and extention. My company filed for apology to USCIS along with extension and but did not ask I-94 it to be back dated. USCIS accepted my apology and gave me extension but I have a gap of 10 in my history, now I am worried to travel abroad. My question is can I still be barred from travelling to US when USCIS has approved my extension. Also will that justification in DS-160 help.

I am in the same situation but not really an expert , so I can guide you based what I know and what I have heard from lawyers .
If you got a i797A with your extension with a back dated i94 , then you are fine and you technically never overstayed .
But if you got a i797B then you are still overstaying and you are still out of status . Also if you don’t exit before one year , you will risk incurring a 10-year ban so you need act immediately. I have heard then less than one year overstay is forgiven but more than one year overstay is not forgiven.
I would suggest you consult and immigration lawyer ASAP.

In my case it was less than 5 months I traveled back and went for consulate for stamping.
I guess if they accepted and gave you extension there should not be any problem, keep these documents safely. I guess the border control or USICS will understand it is a genuine mistake.
it all depends on the officer who interviews.

Hi Thangadurai,
How detailed was your explanation? Did you mention how many days you overstayed in DS 160?

Hi Thangadurai,

I am on an h4 visa and I overstayed for 5 months and going for an interview. I need your help with how you explained to the Visa officer the overstay situation and what are the questions being asked by VO and at the POE.
Could you please share I would be really thankful