Leaving the U.S. After Overstaying: Departure Checks and Key Considerations

Many readers are concerned: if their extension application is not approved and their status expires, making them an overstay, can they still depart the United States smoothly?

Short answer: yes.

CBP's Explanation

Some countries (such as China) impose administrative penalties on foreign nationals who overstay when they depart. However, U.S. Customs does not have exit controls and will not make departure difficult solely because of an expired status; a valid passport is sufficient to leave the United States.

CBP's official website APIS Departure Requirements states:

With respect to APIS for both incoming and departing flights, a passport is considered to be “required for travel” in any instance where the non-immigrant is required by law (including under the INA and WHTI) to present a passport at the time of application for admission to the United States. In other words, the passport is generally considered to be “required for travel” under the INA, and thus under APIS, whether the person is entering or departing the United States. We note that in some instances documents other than a passport may be acceptable for travel (i.e., documents deemed acceptable for travel under WHTI, certain facilitation documents used by undocumented deportees, or aliens who have lost or had their passports stolen). U.S. Customs and Border Protection will be issuing additional guidance to airlines with international flights to clarify acceptable forms of travel documentation for such foreign nationals departing the United States.

CBP also publishes overstay data each fiscal year. Possible actions against overstays include visa invalidation and three-year or ten-year bars from admission, as well as assessing whether the overstay poses a danger to U.S. public safety and whether further investigation is needed. The fiscal year 2019 report is available here. This is not important and can be skipped.

Other Points to Note

• U.S. Customs has the authority to inspect luggage and carry-on items: you must cooperate with customs inspections, and electronic devices may also be examined without a prior search warrant. In this regard, the Chinese Embassy in the United States has again reminded Chinese citizens to pay attention to U.S. entry and exit inspections.

• Traveling to a third country: comply with that country's entry laws, hold a valid visa for that country, and ensure the passport is valid for more than 6 months.

• Transit in a third country: understand the transit policies, especially if you need to stay overnight at the airport or go to another terminal.

• Returning to your home country: the passport validity may be less than 6 months, but it must not be expired. An expired passport must be replaced with a new one at a Chinese embassy or consulate in the United States, or a travel document must be applied for, in order to depart the United States.

• If you have applied for an extension and depart before it is approved, it is recommended to carry the receipt notice for the extension application to prove, if necessary, that you have not “unlawfully stayed.” For detailed explanation, see: {https://gonglue.us/14973}.

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