Immigrants who already reside in the United States and are eligible for lawful permanent residents can apply for and obtain a U.S. green card without departing the country through the adjustment of status. However, this process is not a viable option for everyone. Certain people are required by law to leave the U.S. to attend a green card (immigrant visa) interview at a U.S. consulate or embassy in the respective home country.
Anyone who is still in the U.S. after having overstayed their authorized time under the terms of their visa will most likely not be eligible for an Adjustment of Status (AOS). This process is mainly open to applicants who not only qualify for green cards, but who are:
- Still in the U.S. with a valid visa (with exceptions)
- Not working unlawfully and
- Have not spent time in the country with an unlawful status
Has the Authorized Time On a Visa Expired?
Check the Form I-94 Arrival/Departure Record that was created upon entry into the U.S. for the correct expiration date. The expiration date itself will not be shown on the U.S. visa. Most U.S. entrants can view the I-94 on the Customs and Border Protection (CBP) website.
For those that entered the U.S. on an F-1 Student visa their I-94 will not show an expiration date but rather a “D/S,” for “Duration of Status.” That simply means that the beneficiary of an F-1 Student visa can stay until they have finished their studies as long as they do not do something to violate their student status.
An expiration date shown on the original visa which is the document used to enter the U.S. does not designate how long a person can remain in the U.S. That date only indicates how long that visa can be used for entry.
What Happens If Your I-94 Expiration Date Is About to Expire?
If the expiry date on the Form I-94 is coming to an end and the beneficiary of that visa is not quite ready to apply for an adjustment of status and he or she does not fit into an exception; it is advisable to look into applying for an extension of time or renewal of the current visa status. Once the extension or renewal is granted, the applicant will then be able to maintain eligibility to adjust status when the time is right.
Certain Extensions That Allow People to Remain In The U.S. To Adjust Status
Regardless of the general rule that (people whose authorized stays have expired) cannot apply for an adjustment of status to receive a green card, there are a few types of people who might be able to stay in the U.S. and do so:
- Immediate relatives of U.S. citizens, namely their spouses, parents, and unmarried minor children (under age 21). Immediate relatives may adjust status even with an expired stay under a visa; but not if they entered the United States illegally, that is, without a visa or other authorized form of entry.
- Immigrants who qualify under an old law known as Section 245(i), by having had a family-based I-130 petition or a labor certification filed on their behalf by January 14, 1998; or by having been physically present in the United States on December 21, 2000 and had an I-130 petition or labor certification on file by April 30, 2001.
- Immigrants applying for green cards on the basis of employment who have spent no more than 180 days out of status; for example, whose permitted stay expired up to 180 days before submitting the adjustment of status application. (See I.N.A. § 245, 8 U.S.C. § 1255.)
Determining which category is most applicable will be dependent on the details of each specific case. It is best to consult with a seasoned immigration lawyer.
Risks of Staying in the U.S. on an Expired Visa
Staying without authorization in the U.S. does not look good for anyone filing an adjustment of status (AOS) as it could pose a huge risk when submitting an AOS application.
Overstaying the authorized time granted on the I-94 especially without an extension or a pending adjustment of status application on file could be grounds for some sanctions that could affect any future U.S. visa applications or any US. immigration benefits.
Getting caught by U.S. immigration authorities for an overstay could end in removal from the country and possibly a ten-year bar from re-entering the U.S.
Visit With Your Nearest Immigration Lawyer
Staying in the U.S. on an expired visa while applying for a U.S. green card and waiting in the U.S. for the application process to be completed can be quite risky. Contact Gambacorta Law Office at 1-847-786-2599 for the best method to take when filing for a green card.