Filing An Application for a Green Card After Overstaying a Visa

“Is it Possible to apply for a Green Card after overstaying a visa?” or “What happens if my visa expires and I wind up marrying a U.S. citizen? Individuals asking these questions are worried about whether they will be able to get legal immigration status in the United States despite the period of unlawful presence. While it is possible for certain people to obtain a green card after an overstay, there are several conditions that must be met. This, however, can create permanent immigration problems by applying for immigration benefits after a visa overstay.

There are Two Ways to Fall Out of an Immigration Status

When a foreigner stays in the United States longer than the authorized stay, it is known as “overstaying” a visa. An overstay means that a non-immigrant visa holder who is lawfully admitted to the U.S. for a short authorized period but stayed in the U.S. beyond the time that was allotted to that visa holder.

Non-immigrants who have been admitted with “duration of status” and fail to maintain their status are also deemed to be overstays by the U.S. government. “Duration of status” is a term used for foreign nationals who are granted an authorized stay for the duration of a particular program or activity. For instance, a foreign student who travels to the U.S. for a program that runs for four years must leave as soon as the program is over.

Check Your Form I-94, Not the Expiration Date of Your Visa

Always take a look at your Form I-94 Arrival/Departure Record when checking for how long you are required to stay in the U.S. Do not refer to your visa for the duration of your stay as it does not dictate the length of your authorized stay in the U.S. The “admit until date” on your I-94 record is the last day you will be allowed to remain in the U.S., and it may not be valid for as long as the visa is valid. You must leave the country by the date on the Form I-94 or you will have overstayed the visa.

There are Consequences To Overstaying a Visa

Overstaying your visa can be detrimental to future applications for U.S. immigration benefits. It is quite helpful to understand the three and ten-year bars. In 1996, Congress issued a law that bars certain people who accumulated a period of “unlawful presence” in the U.S. from obtaining lawful permanent residence. Unlawful presence may include any time spent in the U.S. by a foreign national:

  • Who entered the U.S. without inspection and admission or parole; or
  • Whose legal immigration status expired or was revoked or otherwise terminated

Any time spent in the U.S. that is beyond what is authorized on an I-94 record (visa overstay) is a period of unlawful presence. To have a better understanding of the accumulated unlawful presence, ask an immigration attorney for advice.

Forgiveness for a Visa Overstay: Special Provisions Designed for Immediate Relatives

An adjustment of status is the process that non-immigrant visitors (for example a tourist, student, etc), uses to change their status to a permanent resident while still being in the U.S. In simple words, adjusting status is the process of applying for a green card inside the U.S. Normally, adjustment is available to foreign nationals who have lawful entry and have an immigrant visa immediately available to them.

Once a foreigner has overstayed he or she is barred from adjustment of status if the applicant is in an unlawful immigration status on the date of filing the adjustment application. A provision in the law exempts immediate relatives of U.S. citizens from the visa overstay. The immediate relative category includes:

  • Spouse
  • Parents and
  • Unmarried children (under the age of 21) of U.S. citizens

This means that the U.S. immigration law provides some “visa overstay forgiveness” for immediate relatives. Always remember it is important for the immediate relative to have lawful entry to the U.S. to be eligible for an adjustment of status.

Applying for an Adjustment of Status After an Overstay

By returning to your home country to undergo consular processing for a green card, intending immigrants with a significant period of unlawful presence will trigger a bar for reentry. But immediate relatives of U.S. citizens who are presently in the U.S. through lawful entry may be eligible to adjust status to a lawful permanent resident also known as a green card holder.

See Your Nearest Immigration Attorney

If you plan to apply for a green card after you overstayed your visa you must seek immediate counsel from a well experienced immigration lawyer. Applying for a green card alone is not the way to go after overstaying your authorized time. Call Gambacorta Law Office today at 847 443 9303.