Saturday, December 15, 2012

Applying for a Green Card after Overstay of your Visa


Did you overstay your lawful visa (you are no longer in lawful status) and are now in a relationship and would like to marry, or are already married to, a U.S. citizen?  If so, you may be wondering whether, once married, you can lawfully adjust status to permanent resident (obtain your green card), or whether an application to do so would result in a referral to ICE and possibly removal proceedings.

Overstay is not necessarily fatal to an immediate relative (e.g. spouse) petition.  If you are not in lawful status, but you did originally enter the U.S. through lawful means (e.g., a student or work visa), you may still be eligible to adjust status (obtain a green card) if you are currently a spouse of a U.S. citizen.   The key to being able to adjust status, even after overstay, is that you first entered the U.S. lawfully (upon entry, you were inspected and admitted at the border checkpoint).  Even if your visa has since expired, and you remained in the U.S. unlawfully, you may still adjust status and obtain your green card if you are the immediate relative (e.g., spouse) of a U.S. citizen.  There are some restrictions and exceptions to this, so you would be advised to speak with an immigration attorney before proceeding with an application to adjust status to lawful permanent resident.

One immediate pitfall that intending immigrants should avoid if they overstayed their lawful visa status is applying for a travel authorization document before the lawful permanent resident status (LPR/green card) is granted.  Even if you are granted a travel authorization document while waiting for a decision on your LPR (green card) status, but you overstayed your visa and are currently not in lawful status, you may be denied re-entry to the U.S. and barred from return for 3 or 10 years.   This may seem confusing because if the U.S. government approved your travel authorization document while you wait for your green card decision, you may think it would be okay to travel outside the U.S.  However, eligibility for a travel document must be considered separate from your current unlawful status.  While you are in unlawful status, even if you properly applied for a green card and travel authorization, you may not leave the U.S.  Doing so automatically triggers what is called the 3 or 10 year bars to admission.   Up to 180 days of unlawful presence triggers a 3 year bar from admission, and 180 days or more of accrued unlawful presence will trigger the 10 year bar from admission to the U.S.   In order to avoid these bars from admission, you should avoid travel outside the U.S. until your green card petition is approved by USCIS.

Timing of green card approval is of course an issue to individuals who wish to visit home or make a brief trip outside of the country while they wait for the green card approval.   However, if you are an intending immigrant who overstayed a lawful visa, you should consider the consequences of even the briefest departure from the U.S.  While this is a common pitfall, there may be other restrictions to a successful adjustment of status petition.  Again, overstays may not automatically prevent you from obtaining a green card if you are eligible as an immediate relative (e.g., spouse) of a U.S. citizen, but there are considerations to think about.  If you are thinking of applying for a green card as an immediate relative of a U.S. citizen, and you overstayed your visa, you should consult an immigration attorney who will review your facts and present the best options available to you.

For more information on obtaining a green card after an overstay, and immigration in general, and to schedule a consultation, you may visit my website at http://www.sillslawfirm.com or email me at travis@sillslawfirm.com

The information contained in this blog is for informational purposes only, and should not be construed as providing legal advice, nor establishing an attorney-client relationship, without mutual consent of the parties and an express written engagement of services agreement.

1 comment:

  1. I am engaged and my fiancé and I want to know more about the immigration process to obtain my permanent residence.Can you help on my situation?

    US Visa Waiver

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