Visa Overstay and Marriage: Is a Green Card Still Possible?

A visa overstay occurs when an individual remains in the United States beyond the expiration date of their visa without authorization. The implications of overstaying vary based on the duration of the overstay and can significantly affect one’s immigration status and ability to remain in or return to the U.S.

• Short-term Overstays (Under 180 Days): If you overstay for less than 180 days and are married to a U.S. citizen, you may adjust your status to a lawful permanent resident (green card holder) without needing to leave the U.S., provided your initial entry was with a valid visa. This process, known as “Adjustment of Status,” allows you to transition to permanent residency while remaining in the country. However, short-term overstays can still impact future visa applications, making it crucial to address this situation adequately.
• Medium-term Overstays (180 to 365 Days): Overstays of more than 180 days but less than a year result in a three-year bar from re-entry into the United States if you leave the country. Therefore, if you find yourself in this situation and are married to a U.S. citizen, it is advisable to remain in the U.S. and pursue an adjustment of status through marriage. Leaving the country during this time can complicate your ability to return and continue the green card application process.
• Long-term Overstays (Over 365 Days): Overstaying by more than a year triggers a ten-year bar from re-entering the U.S. if you depart. However, marrying a U.S. citizen may provide a path to apply for a green card despite this overstay. Still, avoiding any unauthorized departures from the U.S. is vital until you have received proper travel authorization or your green card application is approved.

Green Card Pathways for Spouses

• Marrying a U.S. Citizen: Marriage to a U.S. citizen is one of the most direct routes to obtaining a green card, even with a visa overstay. The U.S. immigration law allows for exceptions for immediate relatives of U.S. citizens, including spouses. This means that the usual bars for re-entry do not apply, and you can adjust your status while remaining in the U.S. This process involves filing Form I-130 (Petition for Alien Relative) and Form I-485 (Application to Register Permanent Residence or Adjust Status), among other documents.
• Marrying a U.S. Permanent Resident: The process is similar if you are married to a U.S. permanent resident (green card holder). However, you may face additional challenges if you have overstayed your visa. Your ability to adjust your status may depend on whether your spouse becomes a U.S. citizen or you maintain lawful status. Sometimes, consular processing abroad might be the recommended path, especially for short-term overstays.

Navigating Long Overstays

For those with long-term overstays, marriage to a U.S. citizen still offers a pathway to adjust status within the U.S. However, it’s crucial to proceed with caution and under the guidance of an experienced immigration attorney. The U.S. Citizenship and Immigration Services (USCIS) may forgive the overstay for spouses of U.S. citizens, allowing them to adjust their status. Still, each case is unique and requires a thorough evaluation.

Conclusion 

While visa overstays present significant challenges, marriage to a U.S. citizen or permanent resident offers a potential path to adjust your status and obtain a green card. Understanding the detailed implications of your overstay, carefully considering your options, and seeking expert legal advice is critical. Speak with one of our experienced immigration lawyers for assistance with your green card through marriage.

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