Marry a U.S. Citizen after Visa Overstay
Updated on 03/12/2023
The majority of undocumented (illegal) immigrants enter the U.S. with a visa but do not leave when their status expires. Many such people end up staying in the U.S. without status for five, ten or even more years, putting down roots in the U.S., attending school, working, and becoming part of their communities. Inevitably, many develop romantic relationships with U.S. citizens who they wish to marry. It is a common belief that marrying a U.S. citizen provides an easy path to legalizing immigration status. In reality, it can be much more complicated than that. It is also important that U.S. citizens who marry undocumented immigrants and their spouses understand the process they will need to undertake.
Business/ Tourist (B-1/B-2), Student (F-1) and Exchange Visitor (J-1) visas are the categories that are most commonly overstayed. Once your visa status expires, you begin to accumulate unlawful presence. The repercussions for unlawful presence depend on the amount of time you overstay your visa.
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1. What happens if you overstay your visa?
Overstay of 180 days or less: This area has the least serious consequences. Generally, you will be required to leave the U.S. and apply for a new visa. However, your overstay can hurt your chances of obtaining it. You will also be ineligible for the Visa Waiver Program if you are from one of the eligible countries. Luckily for you, there is an exception if you are married to a U.S. citizen, you are permitted to apply for Form I-485 Adjustment of Status, which allows you to get a Green Card without leaving the U.S. as long as you entered on a visa (or visa waiver).
Overstay of more than 180 days but no more than a year: You can still get a Green Card through Form I-485 Adjustment of Status process inside the U.S. Nevertheless, DO NOT leave the U.S. before you get your Green Card because your departure from the U.S. will trigger a three-year bar. Three-year bar means you are not eligible to a Green Card unless you have been physically present outside the U.S. for at least three years or you get an I-601A waiver. Unfortunately, it is extremely difficult to get a waiver.
Overstay of more than one year: You will be subject to a ten-year bar upon your departure from the U.S. Again, you can still apply to adjust your status if you are married to a U.S. citizen. The same issues discussed in the paragraph above will also apply.
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2. What if you entered without a visa?
The situation becomes considerably more complicated if you entered the U.S. without a visa or not entered under visa waiver program. You are subject to the three- and ten-year bars discussed above, and you are not eligible to adjust your status. In some cases, you may be able to receive a waiver that will allow you to remain in the U.S. to wait for a Green Card or return to the U.S. with an immigrant visa through consular processing. However, the waiver will only be granted if you are able to prove that your U.S. citizen spouse will suffer extreme hardship if you are not granted a Green Card. It can be very difficult to meet the “extreme hardship” standard.
Examples of a qualifying hardship can include serious loss of income, inability to obtain adequate medical care, having to care for family members, limited educational opportunities, or dangerous conditions in the immigrant’s home country. Again, these must be hardships that the U.S. citizen spouse would suffer. The United States Citizenship and Immigration Services (USCIS) will not consider a waiver if only the immigrant would suffer a hardship.
3. What if your spouse is a permanent resident?
Your spouse can still sponsor you for a Green Card. However, you must be in legal status if you’d like to obtain a Green Card through I-485 Adjustment of Status process. If you overstay your visa for less than 180 days, you may leave the U.S. and apply for a Green Card through consular processing. If your overstay has been more than 180 days, the only option is to wait for your spouse to become a U.S. citizen and then apply for I-485 Adjustment of Status inside the U.S.
4. The Process to obtain a green card through marriage
1). Establishing the Marriage: Form I-130, Petition for Alien Relative, is used to establish the eligible family relationship. For marriage-based Green Card, the form I-130A supplement is also required. The I-130 and I-130A supplement requests basic biographical information about you, your spouse, you and your spouse’s parents, contact information, work and address history.In addition to these forms, you must provide evidence that your spouse is either a U.S. citizen or permanent resident, proof of a legitimate marriage and evidence to prove a marriage is real. Learn more about how to prove a marriage is real in our article Evidence of Bona Fide Marriage.
2). Establishing Eligibility with Form I-485: This form is used to wait for and obtain Green Card inside the U.S., along with supporting evidence. Required evidence includes copies of your passport, visas, birth certificate and U.S. passport photos. You must also submit forms I-864 to show that you and your spouse are financially able to support yourselves. You can also file forms I-765 and I-131 for work and travel authorization, though you might be advised not to travel outside the U.S. if you have overstayed your visa. A form I-693 medical exam is also required, though you can wait until your Green Card interview to submit this.
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3). Green Card Interview and Approval Process: You will be issued an interview notice about 5-7 weeks before your interview. If you apply for a Green Card through I-485 process, both you and your spouse will need to appear. The interview notice will list documents that you will need to bring with you. You and your spouse will need to bring personal identification such as a driver’s license or passport, your birth certificates and those of any common children, your marriage certificate, proof of income, documents that you used to enter the U.S. and proof of your marriage such as joint tax return, joint bank statements, joint credit card statement, assets or bills in both of your names, and photos together, etc. If all goes well at the interview, your petition will be approved and you will receive your Green Card! Check our article I-485 Adjustment of Status Interview FAQ to well prepare your green card interview.
If you’d like to have step-by-step guides about marriage-based adjustment of status, you may check our article How to Apply for Marriage Green Card through Adjustment of Status? Or just start the application today.
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