Green Card Marriage

Contrary to popular belief, the vast majority of undocumented immigrants inside the United States entered legal immigration status and then overstayed their status. Many enter as tourists, students, or non-immigrant workers. When their visa status expires, they simply remain in the United States and overstay their legal admission by months, years, or even decades. Thus making them undocumented or illegal. In some cases, the foreign national develops a relationship with a US citizen that leads to marriage. We discuss the process of going from a visa overstay to a green card through marriage here.

I overstayed a visa and married a U.S. citizen. Can I still get a green card?

There can be long-term immigration consequences if you overstay your visa or otherwise violate your immigration status. There are three specific time frames to keep in mind if you have overstayed your visa in the United States:
  1. Visa overstays of 180 days or less:  Any overstay should be avoided. Overstays can eliminate you from participating in the Visa Waiver Program, keep you from obtaining a student visa,  and complicate your re-admission to the United States in any form. If you are within the 180 days you should leave the United States to avoid the more serious long-term consequences listed below. However, there is an exception to overstaying your non-immigrant visa if you are married to a US citizen. Through marriage to a US citizen, you are able to file USCIS Form I-485 Adjustment of Status along with USCIS Form I-130 Petition for Alien Relative even though you have overstayed your nonimmigrant visa. When done properly, this allows you to obtain a Green Card through marriage to your US citizen spouse without leaving the US. as long as you entered legally as visa exempt, visa waiver, or on a non-immigrant visa.
  2. Visa overstays of more than 180 days but less than 365 days:  Even with an overstay between 180 and 365 days you can still get a green card through marriage to a US citizen. However, DO NOT depart the United States before you file or while your case is pending. You cannot travel until you have been granted proper travel authorization or received your green card. Any unauthorized departure from the US will trigger a three-year bar due to your overstay. The three-year bar means you will not be eligible for a green card unless you spend at least three years outside the US, or you get a waiver. Waivers are not guaranteed and can be very difficult to obtain. It is best to remain in and from the United States.
  3. Visa overstays of more than 365 days:  If you have overstayed your visa by 365 days or more you will be subject to a ten-year bar with departure from the United States.  However, you are still able to file for a green card through marriage to a US citizen while remaining inside the United States. However, DO NOT depart the United States before you file or while your case is pending. You cannot travel until you have been granted proper travel authorization or received your green card. Any unauthorized departure from the US will trigger a ten-year bar due to your overstay. The ten-year bar means you will not be eligible for a green card unless you spend at least ten years outside the US, or you get a waiver. Waivers are not guaranteed and can be very difficult to obtain. It is best to remain in and from the United States.

What if my spouse is a permanent resident?

If your spouse is a US permanent resident or green card holder, the same overstay issues explained above apply. Although your spouse can still sponsor you for a green card through USCIS Form I-130 Petition for Alien Relative, you are not able to file for adjustment of status through USCIS Form I-485 Adjustment of Status unless you have maintained your nonimmigrant visa status. If you overstay your visa for less than 180 days, you may leave the US and apply for a green card through consular processing. If your overstay is more than 180 days, your only option is for your spouse to file USCIS Form N-400 to become a US citizen. Once your spouse has obtained their US citizenship, you can then file USCIS Form I-485 Adjustment of Status while remaining inside the United States.

What if my overstay is for several years or more?

Even in cases where you have overstayed your visa by 1 year, 2 years, 5 years, 10 years, or more, you are still able to file for a green card through marriage to a US citizen while remaining inside the United States. Your overstay will be forgiven. 

If you are married to a US citizen and have overstayed your non-immigrant visa, you should work with a qualified US immigration lawyer. Even minor errors in the application process can have significant long-term immigration consequences. With proper legal advice, you can obtain a green card through marriage to your US citizen spouse without the need to depart the United States.

Green Cards for Spouses

Immigrant & Non-immigrant Visa (NIV) Waivers

Additional Outside Resources

We Can Help!

The US immigration lawyers at Richards and Jurusik Immigration Law have more than 30+ years of experience helping people obtain green cards through marriage to US citizens. Contact us today for an assessment of your legal situation.

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