Can undocumented immigrants be criminally prosecuted for overstaying a visa?
Executive summary
Undocumented immigrants who overstayed a visa face civil immigration penalties (removal, bars to reentry) and are routinely subject to administrative enforcement, but being an overstay alone has not historically been a primary criminal prosecution target; Congress and the White House have recently pushed to change that, including Senator Banks’ bill proposing jail for overstays and a presidential directive to prioritize prosecutions of unauthorized presence [1] [2] [3].
1. Overstays are already grounds for removal and other civil penalties
Federal law and practice treat remaining beyond an authorized period of admission as a violation that can trigger removal (deportation) and statutory bars to reentry; university guidance and legal summaries note IIRIRA established overstay penalties that still apply today and can complicate adjustment of status or future visas [4] [5].
2. Criminal prosecution historically focuses on other immigration crimes, not mere overstays
Congressional and DHS reporting show that immigration enforcement typically uses removal proceedings and administrative arrests to address unlawful presence; the Congressional Research Service says overstaying “alone would [unlikely] trigger removal” except where linked to national-security or public-safety priorities, and ICE’s Enforcement and Removal Operations focuses on threats or criminal histories when making arrests and referrals [1] [6].
3. Prosecutors and courts have prosecuted immigration offenses — and prosecutions rose in 2025
Data compiled by TRAC and federal statistics indicate criminal immigration prosecutions increased sharply in early 2025, with thousands charged in U.S. district courts and immigration-related cases making up a large share of federal convictions in March 2025; those criminal prosecutions, however, historically concentrate on illegal entry, reentry after removal, fraud, or other felonies rather than simple visa overstays [7].
4. Political pressure is pushing to criminalize visa overstays
Legislation and executive priorities in 2025 mark a shift: Senator Jim Banks introduced the Visa Overstay Penalties Act to classify visa overstays as criminal illegal entry (proposing up to six months jail for first offenses and two years for repeat offenses), and a White House January 2025 policy directed DHS and the Attorney General to “prioritize the prosecution of criminal offenses related to the unauthorized entry or continued unauthorized presence of aliens” [2] [3]. That combination signals lawmakers and the administration are narrowing the gap between civil removal and criminal prosecution for overstays.
5. Advocates and analysts warn criminalization would catch many nonviolent overstayers
Nonprofit research and immigration-policy analysts emphasize that overstays now constitute a significant share of the undocumented population and that the “overwhelming majority” of undocumented immigrants are not serious criminals; they argue criminal penalties for overstaying would sweep in many who pose no public-safety threat and would shift resources away from intelligence-driven priorities [8] [1].
6. Practical enforcement constraints and prosecutorial discretion matter
ICE’s ERO and U.S. Attorneys exercise discretion. Even with new statutes or prosecutorial priorities, agencies still prioritize threats to national security or public safety and use intelligence-driven targeting; the practical effect of criminalizing overstays would depend on prosecutorial choices, resource allocation, and whether courts or immigration judges apply existing exceptions and discretion [6] [1].
7. What changes if Banks’ bill or similar measures pass?
If S.1937 or similar laws pass, statutory criminal penalties would create a new avenue for federal prosecutions and potentially increase referrals to U.S. Attorneys; Senator Banks’ bill text explicitly proposes jail terms, higher fines, and reclassifies overstays as akin to illegal entry—changing legal exposure from primarily civil removal to possible criminal sentences [2] [9].
8. Conflicting narratives — security vs. humanitarian and cost concerns
Proponents frame criminalization as closing a “loophole” and point to high overstay numbers cited by DHS to justify tougher penalties [2] [10]. Opponents and neutral analysts note that overstays now outnumber some categories of illegal entry and that most overstayers are not violent, warning criminal penalties could be disproportionate, expensive, and divert enforcement from higher-risk targets [8] [7].
9. Bottom line for readers seeking clarity
As of current reporting, overstaying a visa is a civil immigration violation that commonly leads to removal and reentry bars, not automatic criminal prosecution; but 2025 legislative proposals and White House directives aim to make overstays prosecutable crimes and have already coincided with a surge in immigration prosecutions—so legal exposure for an overstay could increase significantly if new laws are enacted and enforcement priorities are implemented [4] [2] [7].
Limitations: available sources do not mention how courts would interpret the new crime if passed, nor do they provide definitive counts of how many existing overstays would be criminally charged under a new statute—those outcomes depend on future legislation, prosecutorial discretion, and implementation (not found in current reporting).