In the realm of immigration, visa overstays often create complexities. Most undocumented immigrants in the U.S. entered legally but overstayed their visas. Many of these individuals are tourists, students, or non-immigrant workers who remained past the expiration of their visa status, making them undocumented. In some scenarios, these individuals marry U.S. citizens. This article delves into the process of acquiring a green card through marriage, even after a visa overstay.
Understanding the Consequences of Visa Overstay
Overstaying your visa may have serious implications for your immigration status. The repercussions can be grouped into three specific time frames:
- Overstay of 180 days or less: Overstays should ideally be avoided as they can disqualify you from the Visa Waiver Program, make obtaining a student visa difficult, and complicate your re-entry into the U.S. If you are within the 180-day limit, you should leave the U.S. to avoid severe long-term consequences. However, if you’re married to a U.S. citizen, an exception applies. By filing USCIS Form I-485 Adjustment of Status along with USCIS Form I-130 Petition for Alien Relative, you can obtain a green card without leaving the U.S., given your entry was legal.
- Overstay of more than 180 days but less than 365 days: With an overstay within this period, a green card through marriage is still attainable. Yet, avoid leaving the U.S. before filing or during the pending case. Unauthorized departure triggers a three-year bar due to the overstay, mandating a three-year stay outside the U.S., or obtaining a waiver.
- Overstay of more than 365 days: Overstays exceeding a year invoke a ten-year bar upon departure from the U.S. You can still file for a green card through marriage, but refrain from unauthorized departures until you have valid travel authorization or received your green card.
Green Card Process for Spouses of Permanent Residents
If your spouse is a U.S. permanent resident, the same overstay issues apply. While they can sponsor you for a green card, you cannot file for adjustment of status unless your nonimmigrant visa status is maintained. If the overstay is under 180 days, you may leave the U.S. and apply for a green card via consular processing. If it exceeds 180 days, your spouse must file USCIS Form N-400 to become a U.S. citizen before you can file for adjustment of status.
Handling Extended Overstays
Overstays lasting several years can still lead to obtaining a green card through marriage while inside the U.S., and the overstay can be forgiven.
Engaging a skilled U.S. immigration attorney is crucial if you’ve overstayed your non-immigrant visa and are married to a U.S. citizen. Even minor application errors can lead to significant long-term immigration consequences. With sound legal advice, you can obtain a green card without leaving the U.S.
Immigrant & Non-immigrant Visa (NIV) Waivers
Additional Outside Resources
- USCIS Form I-130, Petition for Alien Relative
- USCIS Form I-485, Application to Register Permanent Residence or Adjust Status
We Can Help!
You may have questions regarding Green Card Acquisition through Marriage with a Visa Overstay. We invite you to reach out to our team at Richards and Jurusik for detailed guidance and assistance. Our goal is to provide you with the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today for an assessment of your legal situation.
