Marrying a U.S. Citizen after Overstaying Visa

You may be eligible for a green card if you entered the U.S. legally and married a U.S. citizen in good faith even if you overstayed a visa and accrued unlawful presence in the U.S. How?

If you have married a U.S. citizen, and are otherwise eligible, you may be able to obtain a green card even though you overstayed your visa or worked without authorization. People often ask, “Do I need a waiver to stay in the United States after marrying a U.S. citizen even if I have overstayed my visa?” or “What if I my visa expired or I worked without authorization and I’m married to a U.S. citizen? Can I obtain a green card?” These questions focus on the issue of how to obtain lawful permanent residency (a green card) in the United States when there has been unlawful presence or unauthorized work.

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Marrying a U.S. citizen after overstay can provide path to green card

When you marry a United States citizen, you are granted certain privileges under U.S. immigration law not available to other intending immigrants.

The immigration laws are written to favor family unification. As a result, even if you have overstayed a visa or worked without authorization, you may be eligible for a green card due by filing an immediate relative adjustment of status application.

Visa Overstay and Unauthorized Work

A visa overstay is simply when an alien who has been admitted on the basis of a nonimmigrant visa (that is, a visitor visa, H-1B visa, etc.) has remained in the United States beyond the period of stay authorized. The period of authorized stay can be found on your I-94 Arrival/Departure Record. You can now get your most recent I-94 online on the CBP website.

It is important to note the distinction between your visa validity date and your I-94 period of authorized stay. The visa stamped in your passport may be valid beyond the expiration date on your I-94. The visa, however, does not control the length of authorized stay in the U.S. It merely provides you the ability to enter the U.S. during the period in which it is valid. The relevant period of authorized stay for whether you overstayed a visa is on your I-94.

Generally, aliens are barred from adjusting status if they have accepted unauthorized employment while in the United States. If you come a visitor visa, you cannot legally work in the U.S. If you overstay a visa, then accept employment, you have accepted unauthorized employment.

Due to the fact that a foreign national who is present in the United States without lawful status (overstayed a visa) or who is working without authorization can fix the problem by marrying a U.S. citizen and filing for a green card, USCIS scrutinizes the “bona fides” of the marriage to weed out marriage fraud cases.

Marriage Fraud and Green Card Ineligibility

Marrying a U.S. citizen solely to obtain an immigration benefit is marriage fraud. USCIS will deny an adjustment of status application filed by such individual and will institute removal proceedings. Marriage fraud is never an option. In any marriage based green card application, USCIS requires objective evidence to establish that a marriage is bona fide and was entered into in good faith.

Further, if you intended to file a green card application at the time of entering the United States on a nonimmigrant visa, USCIS may deny the adjustment of status application claiming fraud. USCIS may also allege that you had preconceived intent, or some other disqualifying factor. Adjusting status to a green card holder is a discretionary benefit. Therefore, you need to ensure you otherwise meet all of the statutory requirements and have positive discretionary factors in your case. Fortunately, preconceived intent alone has been held insufficient to deny adjustment of status for an immediate relative. See – Matter of Cavazos, 17 IN Dec. 215 (BIA 1980).

Finally, if you enter on a K-1 visa and do not get married within 90 days of your entry, or if you marry someone other than the initial fiance visa petitioner, you generally cannot remain in the U.S. and obtain a green card through the adjustment of status process.

Overstayed Immediate Relatives—the Statutory Scheme Under INA §§ 245 and 201

The statutory scheme granting adjustment of status to someone married to a U.S. citizen who overstayed their visa is generally found under Immigration Nationality Act (“INA”) Sec. 245. [8 U.S.C. 1255]. The definition of an immediate relative is found at INA § 201 and grounds for inadmissibility is found at INA § 212(a).
The below provisions work together to establish that an alien who has overstayed a visa can obtain a green card based on a marriage to a U.S. citizen if eligibility requirements are met. Note how the statute defines eligibility for adjustment of status under 245(a), then states that those general eligibility rules are not available to anyone who has overstayed a visa or worked without authorization unless they are a certain a certain class of aliens, including an immediate relative (spouse of U.S. citizen, among others).
  • INA § 245(a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if: (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

Note the four general requirements to obtain adjustment of status from the provision above: (1) you MUST have been admitted after an inspection by an immigration officer, (2) you MUST file your application on I-485, (3) you MUST have the required relationship (in this case, marrying a U.S. citizen) and cannot be inadmissible (see INA 212(a) below), and (4) your priority date MUST be current, which it is when you are an immediate relative.

  • INA § 245(c) Subsection (a) (the provision above) shall not be applicable to an alien (other than an immediate relative as defined in § 201(b) (the provision below) …) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States.

Note how the statute states the general rule of ineligibility then carves out the exception for immediate relatives, which is defined under § 201(b).

  • INA § 201(b)(2)(A)(i) Immediate relatives. For purposes of this subsection, the term “immediate relatives” means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.
  • The individual cannot be inadmissible—see the provisions under INA § 212(a).

As you can see, if you otherwise meet the statutory requirements for adjustment of status, you can obtain a green card by marrying a U.S. citizen even after you have overstayed a U.S. visa or worked without authorization.

Application of INA § 245 for Marrying a U.S. Citizen

The adjustment of status application is filed on Form I-485. Under § 245(c), an alien must be in valid status on the date they file their I-485 to be eligible for adjustment of status.  In the same provision, however, the law carves out an exception for immediate relatives of U.S. citizens from the requirement to be in valid status. The spouse of a U.S. citizen is considered an immediate relative.

But, a spouse of a U.S. citizen must have lawfully been admitted into the United States to benefit from these provisions. An admission is the lawful entry of an alien into the U.S. after inspection and authorization by an immigration officer. Providing a valid visa a port of entry is typically a lawful admission even if your visa later expires.

If, on the other hand, you entered the U.S. without inspection, you are generally not eligible. What this means is that each case is different. You may overstayed your visa, married a U.S. citizen, but still be ineligible. It is very important to consult with an experienced immigration lawyer before filing for a green card.

Immigration Lawyer in Columbus, Ohio

Obtaining Green Cards for Families

The experienced immigration lawyer at Porter Law Office, LLC is dedicated to assisting you navigate the complex adjustment of status process to obtain your green card. By hiring Porter Law Office, LLC, you be working with an experienced immigration lawyer who understands what it takes establish the best possible plan to obtain you or your family member’s green card through the adjustment of status process. Porter Law Office, LLC is conveniently located outside of Columbus, Ohio in the suburb of Gahanna. If you need help with the adjustment of status process, or any other immigration issue, contact Columbus, Ohio immigration lawyer Matthew R. Porter today for free consultation to discuss your options.