visa overstay

Marriage to a U.S. Citizen after a Visa Overstay, Can I Get A Green Card?

Marriage to a US citizen not only offers you a lifelong companion, but it can also change your immigration status. In normal circumstances, marrying a US citizen makes you eligible for a Green Card based on your relationship. This, however, will depend on whether you are admissible into the US in the first place.

Inadmissibility is complex and you’ll need to be honest about your past to immigration officials. I’ve seen a lot of difficult cases approved for a Green Card that initially had grounds of inadmissibility for unlawful presence.

So, what happens if you overstayed your visa and married a US citizen?

This is actually very common. The chances of you finding love on a student or work visa in the US is very high. Think about it. You’re in the US for several months or years and will come in contact with many US citizens in your life. You are bound to meet someone you like and start a relationship (if you’re single of course).

Are You Inadmissible And Need A Waiver?

In 1996, the US government put in place a law that would punish those who illegally entered the US or stayed after their visa had expired. Arriving in the US on a valid visa then choosing to overstay will result in unlawful presence time to start adding up. The consequences for having unlawful presence time is pretty steep: a 3 or 10 year bar from the United States.

Unlawful presence and 3 Year Bar

A 3 year bar is levied when you have overstayed past your visa expiration for more than 1 day and less than 6 months.

Unlawful presence and 10 Year Bar

A 10 year bar is levied when you have overstayed past your visa expiration for 1 year or more.

The date that is stamped on your visa/passport is the date you would need to leave the US. If you stay any longer than this date, you will begin to accrue unlawful presence.

Example:

I came to the U.S. on a student visa, then dropped out, but I didn’t leave the United States because I was in love with an American citizen. Now it’s been two years and we have gotten married and she is pregnant. We want to start the green card application process for me. Do I need to apply for a waiver for my overstay of the F1 visa?

You ma be wondering “will USCIS forgive my overstay after I marry a US citizen?” It depends on how long you were unlawfully present in the US and how you entered the country. Getting here on a valid visa is seen less negatively than crossing the US border.

Once you are found to be inadmissible, you will then need to file for a waiver asking USCIS to forgive your illegal overstay in the US based on the extreme hardship your US citizen relative would face. This sounds easier than it really is. I’ve seen lots of cases that didn’t show enough evidence of hardship which resulted in a denial of the waiver.

But, I will say that if you can prove that your US spouse or parent will face EXTREME hardship, not just the usual hardship caused by your separation, you have good odds of approval.

The number of nonimmigrant visa holders that overstay is quite small. Out of a total of 45 million nonimmigrant visas issued, only 1.17% of them stay past the expiration date on the visa.

visa overstay

Difference Between I-601 and I-601A Waiver

Both the I-601 and I-601A are used when your case falls under one of the many grounds of inadmissibility. The difference, in simple terms, is that the I-601 is used when living outside the US and I-601A is used when you currently live inside the US.

The waiver will ask USCIS to overlook the reason for inadmissibility and allow a Green Card to be issued.

So, who is required to file for the I-601(A) waiver?

  • If you’re applying for a Green Card and live outside the US and had a Green Card interview where you found out your were inadmissible.
  • If you’re presently in the US and want to apply for adjustment of status after marrying a US citizen.

Other applicants that are eligible to file I-601:

  • If you applied for a K-3, K-4, V nonimmigrant visa outside the U.S. and had a Green Card interview where you were found to be inadmissible.
  • Temporary Protected Status applicant
  • Nicaraguan Adjustment and Central American act applicant
  • Haitian Refugee Immigrant Fairness Act applicant
  • Violence Against Women Act applicant
  • T nonimmigrant applicant for adjustment of status inadmissible on a ground not waived through T nonimmigrant status

List of grounds of inadmissibility:

  • Health related issues – physical or mental
  • Criminal issues
  • Membership in Totalitarian Party
  • Immigration fraud – lying or misrepresentation
  • Smugglers subject to civil penalty
  • 3-year or 10-year bar for unlawful presenceexplained above
  • Issues with Temporary Protected Status applicant
  • Unlawful presence by VAWA applicant
  • Issues with T nonimmigrant applicant

Are You Eligible for I-601A Provisional Waiver?

One of the most important factors is whether you entered the US on a legal visa or if you entered the country without inspection. Entering on a valid visa will be easier to overcome but having crossed the border illegally will be an uphill battle.

The I-601A provisional waiver is a new option for those who have been unlawfully present in the US and don’t want to risk triggering the 3 or 10 year bar when it’s time to attend their interview abroad. Thankfully, USCIS now allows applicants to wait in the US to get their final decision without having to leave the US first.

The qualify for I-601A waiver:

  • You must have a qualifying immediate US citizen relative (spouse, child, parent)
    • If relative is a green card holder, they must wait until they are US citizens
    • Qualifying US relative doesn’t need to be the petitioner
    • Qualifying US relative must at  least 17 years old
  • You  must currently reside in the US
    • Your current immigration status doesn’t matter
  • Must have an approved I-130 or I-360 petition and paid the IV fee
  • Unlawful presence must be the only grounds of inadmissibility for your case.
    • If you also have a criminal grounds of inadmissibility, you are not eligible to file for I-601A.
  • If you left the US and are now under the 3 or 10 year bar for your unlawful presence, you won’t be eligible to use the I-601A waiver.
    • You can file I-601 from outside the US.
  • If you were ever deported from the US you aren’t eligible to use form I-601A.

Proving extreme hardship to US citizen relative:

  • Extreme hardship to US citizen spouse or parent (not a child)
  • Extreme hardship to a child only if it affects USC parent/spouse

Learn more about what documents you need to include to prove extreme hardship.

How long does it take to process I-601A waivers?

Under normal circumstances, it takes USCIS 4-6 months to process I-601A waivers. But, this doesn’t include the additional time it can take if you are sent a request for evidence (RFE) and how long it takes for you to respond.

Luckily, the wait time won’t be so bad since you are allowed to stay in the US while your application is being processed.

USCIS is reporting that they are approving about 65% of I-601A waivers.

Adjustment Of Status VS Consular Processing

Remember how I told you the main different between the I-601 and I-601A was whether you were in the United States or not? Well, the difference between adjustment of status and consular processing is very similar. Adjusting your status from a student or work visa is a lot easier than applying for a visa/green card abroad.

In this post, I describe the pros and cons of adjustment of status VS consular processing. Good news is that if you’re already in the US you have the option to choose either one. However, if you’re outside the US your only option is consular processing.

This is why applying for the I-601A waiver while in the US is your best option. This way, you won’t need to leave the country until your waiver is approved and interview scheduled.

How USCIS Waiver Processing (flowchart)

i601 waiver process

 

Final Thoughts on Visa Overstay and Green Card Eligibility

As you can see, a visa overstay isn’t a nail in the coffin for your Green Card application. As long as you can prove extreme hardship to your qualifying US citizen relative, you should be approved after your interview.

It takes about 4-6 months for a decision to be made on the I-601A waiver. You should use this time to prepare for the interview (assuming the waiver will be approved) and figure out travel arrangements. If your waiver is approved, you will be scheduled for an interview in your country of nationality.

The interview will only focus on the details of the green card application. Your unlawful presence time will not be considered by the consular officer. This is due to the fact that the approved waiver forgives this grounds of inadmissibility.

Unfortunately, if the I-601A waiver is denied, there is no option to appeal or reopen your case. The only option is to submit a new application and pay the expensive fees again. I’d only recommend reapplying if you have additional evidence for USCIS to consider.

Many immigrants that are denied the I-601A waiver end up abandoning their Green Card application completely. They continue to live in the US with their spouse and may reapply when their circumstances change.

For example, if their US spouse is diagnosed with stage 4 cancer they can easily prove extreme hardship and choose to apply again.

Some applicants hire an immigration attorney to put together their waiver application, but remember, an attorney doesn’t guarantee approval and it all depends on the evidence you can provide. I’d still recommend that you consult an attorney to review your case and find out your options.

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Hi! I’m a foreign born Canadian that has immigrated to the United States to marry the love of my life. I successfully navigated the U.S. immigration system all the way to U.S. citizenship. Immigration is a privilege not a right!

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