Can You Get a Green Card if You Overstay Your Visa?

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Have you ever wondered whether you can obtain a green card once you have overstayed your visa? In this video, attorney Jacob Sapochnick, answers precisely this question, along with related topics that might interest you. For instance, what should a person do once they have overstayed? What are the options to cure an overstay to obtain lawful status in the United States?

To understand more about this complicated topic, please keep on watching.

Overview

In most cases, a foreign national will come to the United States lawfully, meaning that they arrived on a valid visa type such as a student, visitor, or work visa and were inspected and admitted to the United States. Unfortunately, in some situations individuals fall out of status and overstay their period of authorized stay. Whether it is because they lost their job, failed to attend school, or could not leave the United States in time before the expiration of their I-94 arrival/departure record, there are many situations that can cause an overstay to happen.

By contrast, some individuals enter the United States unlawfully, meaning that they entered the United States without being inspected and without a valid visa. The issue of whether the foreign national entered lawfully or unlawfully is crucial when it comes to the options that may be available once an overstay has occurred.

How do I know if I overstayed my U.S. visa?

First, let’s discuss the threshold question of how one can know whether they have overstayed their visa.

This may seem like a complicated question, but in fact is very easy to resolve. A person overstays their visa if they have remained in the United States past the authorized period of stay stamped in their passport. When a person is admitted to the United States, they receive a stamp issued by a Customs and Border Protection official which provides the exact date when the individual’s period of stay expires, and consequently when they must leave the United States.

In addition to the passport stamp, foreign nationals can retrieve their I-94 arrival/departure record on the Customs and Border Protection (CBP) website which includes their most recent date of entry, and the date their period of authorized stay expires. The date of expiration is the date at which the foreign national must depart the United States. Failure to depart by the date indicated means that the applicant has overstayed their period of authorized stay.

In some cases, the I-94 stamp, or I-94 record will include the notation “D/S” most commonly for individuals on student visas. This notation means that the applicant is expected to leave the United States, when their program of study has ended. The end date of the program of study can be found on the Form I-20 Certificate of Eligibility for Nonimmigrant Student Status. Students should contact their Designated School Official for this information.

Please note that the I-94 period of authorized stay, and the visa expiration date are completely separate matters. The visa expiration date indicates how long you can use that visa to enter the U.S. (think of your visa as a key that allows you to open the front door to your vacation home).

On the other hand, the authorized period of stay stamped in your passport and provided on your I-94 record, tells you exactly how long you can stay in the United States after you have entered (think of the I-94 stamp as the amount of time you are allowed to stay in the vacation home before your time is up and you must leave).

In other words, while your visa could be valid and issued for many years, your period of authorized stay (stamp in your passport) may only be valid for a few weeks or months.

It is your responsibility to inspect your passport stamp and/or online I-94 arrival/departure record on the CBP website to fully understand how long you are allowed to remain in the United States.

You can access your I-94 record on the U.S. Customs and Border Patrol (CBP) website if you don’t have a paper copy of it. You will be able to see your authorized stay information on the CBP website when you enter your passport number and other personal information.

Bars to Inadmissibility

Under certain circumstances, an overstay can have very serious consequences. Those who have overstayed more than 6 months beyond their period of authorized stay (the passport stamp) can be barred for 3 years from entering the United States. Further, those who overstayed more than 1 year beyond their period of authorized stay can be barred from entering the United States for 10 years.

The Visa Waiver Program – ESTA

Those who enter the United States under the Visa Waiver Program using a valid Electronic System for Travel Authorization (ESTA) are only granted a duration of stay up to 90 days without exceptions. Travelers using the Visa Waiver Program are not eligible to extend their temporary period of stay and are required to depart before the 90-day period of stay ends.

Illegal Entry without Inspection

Those who enter the United States illegally, meaning without being inspected and without a valid visa or permit, have very few options to legalize their status inside the United States when compared to the options available to those who entered legally but overstayed their visas. For instance, one of the few options to legalize your status with an illegal entry is marriage to a U.S. Citizen. However, this will require the applicant to go through Consular processing and to apply for a waiver of inadmissibility based on extreme hardship to the U.S. Citizen spouse. Unfortunately, individuals who entered illegally are not eligible for adjustment of status within the United States, despite being married to a U.S. Citizen. The waiver process allows the applicant to enter the United States once they have attended their immigrant visa interview at a U.S. Consulate abroad. Without an approved waiver, the applicant cannot enter the United States.

Who is allowed to adjust their status in the United States, even with an overstay?

Typically, if you are the immediate relative of a U.S. Citizen (spouse, unmarried child under age 21, and parent) you are allowed to adjust your status to permanent residency (green card) while you are in the United States, despite having overstayed.

For instance, spouses of U.S. Citizens can apply for adjustment of status (green card) while in the United States, even if their period of authorized stay has expired while under a work visa, student visa, the visa waiver program etc. as long as they have remained in the United States.

As mentioned, those who entered illegally or those who overstayed and subsequently departed the United States, are not eligible to file adjustment of status (green card) within the United States.

Can you travel outside the country if you came to the U.S. and overstayed?

Perhaps. You can only travel outside of the United States, if you are currently going through the adjustment of status process to permanent residence (Form I-485) and you have applied for and received an approved advance parole document (Form I-131) allowing you to return after temporary foreign travel. If you do not have an approved advance parole document, you cannot travel outside the United States. Doing so would result in the abandonment of your adjustment of status application (Form I-485) and could lead to more serious consequences such as triggering the 3- and 10-year bars on inadmissibility.

The bottom line

The bottom line is that at least for some, obtaining a green card after overstaying is possible. However, the proper procedures must be followed, and you must consult with an experienced immigration attorney who can navigate the complex process to determine whether you would qualify. If you entered the United States illegally, your options are more limited but you may still have some options to apply for a green card if you are married to a U.S. Citizen.

We hope this information was helpful. If you need more information help please contact us to schedule a consultation.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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