For many immigrants who have overstayed their visas, marriage to a U.S. citizen can seem like a pathway to legal status. However, the process is not always straightforward. If you have overstayed your visa and married a U.S. citizen, you may still have options to obtain
a green card, but several factors will determine your eligibility and the process you must follow.
Understanding Visa Overstay and Its Consequences
Overstaying a visa means that you remained in the U.S. beyond the authorized period granted by your visa. The consequences of an overstay depend on the length of time you have remained in the U.S. unlawfully:
Overstay of Less Than 180 Days: There are typically no bars to reentry, but you are still considered out of status.
Overstay of More Than 180 Days but Less Than One Year: You may face a three-year bar from reentering the U.S. if you leave before adjusting your status.
Overstay of More Than One Year: You may be subject to a ten-year bar from reentering the U.S. if you leave before adjusting your status.
However, marriage to a U.S. citizen offers certain protections and opportunities for adjustment of status.
Can You Adjust Your Status After Overstaying?
If you marry a U.S. citizen, you may be eligible to apply for a green card (lawful permanent residence) through adjustment of status, even if you have overstayed your visa. The key advantage of marrying a U.S. citizen is that you do not need to leave the U.S. to complete the green card process, which means you can avoid triggering the reentry bars mentioned earlier.
Eligibility for Adjustment of Status
To qualify for a green card through marriage after an overstay, you must:
Be physically present in the U.S.
Have entered the U.S. legally (i.e., with a visa or another form of legal entry). This includes those who entered with a visa but overstayed.
Demonstrate a bona fide marriage (a real, good-faith marriage, not one entered into just for immigration benefits).
Be admissible to the U.S. (e.g., you should not have criminal convictions or other disqualifying factors).
Since visa overstays are forgiven for immediate relatives of U.S. citizens (such as spouses), you can apply for a green card without leaving the country.
What If You Entered Illegally?
If you entered the U.S. without inspection (illegally, without a visa) and overstayed, you are generally not eligible for adjustment of status from within the U.S. However, you may qualify for a waiver of unlawful presence through the Provisional Unlawful Presence Waiver (Form I-601A) before applying for a green card through consular processing in your home country.
The Green Card Process for Spouses of U.S. Citizens
If you qualify for adjustment of status, you will go through the following steps:
File Form I-130 (Petition for Alien Relative) – This form establishes the validity of your marriage and must be filed by your U.S. citizen spouse.
File Form I-485 (Application to Adjust Status) – This is your application for a green card and can be filed at the same time as Form I-130 (concurrent filing).
Attend Biometrics Appointment – You will provide fingerprints, a photograph, and other necessary background information.
Attend the Marriage Interview – USCIS will interview you and your spouse to verify the legitimacy of your marriage.
Receive Your Green Card – If USCIS approves your application, you will receive a conditional green card (valid for two years) if you have been married for less than two years. If you have been married for more than two years, you will receive a 10-year green card.
What If You Face a Three-Year or Ten-Year Bar?
If you leave the U.S. after accruing unlawful presence, you may face a bar from reentry. However, if you qualify, you can apply for a waiver of inadmissibility (Form I-601 or I-601A). To get a waiver, you must prove that your U.S. citizen spouse would suffer extreme hardship if you are denied entry to the U.S.
Conclusion
If you have overstayed your visa but entered the U.S. legally, you can still apply for a green card through marriage to a U.S. citizen without leaving the country. However, if you entered illegally, you may need to leave the U.S. and apply for a waiver before obtaining a green card. Consulting an immigration attorney can help you navigate the process and avoid unnecessary risks.
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