Many individuals fear that their unlawful presence in the United States will completely bar their eligibility for a future green card. In some cases, this is possible. It is always important to have your case evaluated by an immigration attorney. Yet, for many nonimmigrant visitors who remain in the US past their approved duration of stay – they may be eligible for an exemption or waiver that will allow for an adjustment of status. “Adjustment of status” is the legal phrase used to describe “adjusting” from a nonimmigrant to an immigrant (permanent resident or green card holder).
Immediate relatives of US Citizens are eligible for an exemption when they have overstayed their visa. You can qualify for this exemption regardless of how long you have overstayed. Yet, you need to prove that you entered with inspection.
After you overstay a visa, please keep in mind that if you exit the country – without first applying for a travel document – then you may find yourself barred from re-entry for 3 or 10 years, depending on how long you have overstayed.
How do I know if I am eligible to apply for a green card after an overstay?
Please keep in mind that even if it appears that you are eligible to adjust status, this is not an exhaustive list. Exceptions and nuance situations may apply to your case that may change your eligibility.
The Department of Homeland Security Policy Manual states that “some or all of the adjustment bars do not apply to certain categories of adjustment applicants.” A U.S. citizen’s immediate family are exempt and are still considered admissible and eligible to apply for an adjustment of status. This includes the spouse of a US citizen.3
The Policy Manual states that spouses, who entered with inspection, may be able to apply for an adjustment of status even if they:
- Worked without legal authorization;
- Are not in lawful status when they file their application;
- Failed to maintain continuous lawful presence since his/her U.S. entry;
- Were admitted as a nonimmigrant visitor under the Visa Waiver Program; or
- Have violated the terms of their nonimmigrant status.
Are there any additional issues to keep in mind?
While spouses who have overstayed their visas, even by 50 years, may be eligible for the exemption to adjust status – there are other issues to keep in mind. For example, this exemption will not excuse foreign spouses from other grounds of inadmissibility, other bars, and eligibility requirements.
Ask yourself the following questions:
- Did you enter without inspection?
- If you entered without a valid visa, you may still be able to apply for a green card, but it will not be through the adjustment process. You will need to see if you qualify for a waiver.
- Are you able to illustrate that you entered with inspection?
- The exemption only applies to those who have evidence of having entered with inspection.
- Do you have a criminal record?
- Not all crimes will disqualify you. For individuals with criminal records, it is important that your arrests, charges, and convictions be evaluated by an experienced immigration attorney.
- Have you ever been in removal proceedings?
- For individuals who have been processed by immigration, it is important that your removal history be evaluated by an experienced immigration attorney.
- Is your marriage bona fide?
- Your marriage must be based on a legitimate union based on a personal relationship. If you are marrying your spouse in order to gain immigration benefits, you may be subjected to criminal prosecution.
Need Counsel for Immigration? Call Today!
Immigration law can be complicated and this article does not exhaust all the circumstances surrounding marrying a US Citizen after you entered with inspection. These issues can be extremely complex, and a single misstep could potentially lead to a deportation or other immigration penalties. If you have any questions regarding applying for a green card through your spouse, please do not hesitate to contact our office
Call our law firm to consult with an immigration attorney today at: (949) 478-4936.