Overstaying a U.S. visa can feel overwhelming—but it doesn’t always mean your options are gone. In fact, there are legal pathways that may allow certain individuals to remain in the United States even after a visa has expired.
In this post, we’ll break down three lawful options, explain who they may apply to, and clarify common misconceptions—so you can better understand your situation and make informed decisions.
Legal Options After a U.S. Visa Expiration
Option #1 Marriage to a U.S. Citizen
Marriage to a U.S. citizen is one of the most common legal options for individuals who have overstayed a visa. Under U.S. immigration law, spouses of U.S. citizens are considered “immediate relatives,” which means they may be eligible to apply for lawful permanent residence (a green card) from within the United States, even if they later overstayed their visa.
This process typically involves filing several immigration forms, submitting proof that the marriage is bona fide (such as shared finances or living arrangements), completing a medical exam, and attending an in-person interview with U.S. Citizenship and Immigration Services (USCIS).
While a visa overstay is often forgiven, recently there has been an increase in immigration enforcement actions where spouses of U.S. citizens have been detained due to visa overstays, during their marriage-based green card interviews.
Starting Wednesday, May 7th, anyone 18 years and older traveling domestically within the United States must have a REAL ID-compliant state-issued driver’s license or another accepted form of identification to board a commercial flight.
To learn more about the REAL ID, how to obtain one, and what alternative documents are accepted for travel, keep watching.
Who is Affected
Anyone 18 years and older boarding a flight in the United States
Including:
Lawful Permanent Residents (Green Card Holders)
Non-immigrant Visa Holders
Undocumented immigrants
What is a Real ID
A Real ID is a type of state-issued driver’s license or identification card that meets enhanced federal security standards established by Congress with the passage of the Real ID Act in 2005. It was created to improve the reliability of photo IDs and to prevent identity fraud.
At a Glance
A Real ID is a federally approved form of identification that includes additional security features compared to standard licenses.
It is required for boarding domestic commercial flights and contains a Real ID star marking on the top right.
How to Get One
Gather Required Documents: You’ll need to provide proof of identity (such as a birth certificate, Permanent Resident Card (Green Card), or foreign passport with valid U.S. visa and approved form I-94), proof of a Social Security number (such as your SSN card or paystub), and proof of your residency (two documents such as a Federal Tax Return, rental or lease agreement).
Application Process: With your documents in hand, visit your local Department of Motor Vehicles (or the equivalent issuing agency in your state), or check to see if you can complete your application online, and pay the applicable fees to receive a Real ID-compliant card.
In this video, attorney Jacob Sapochnick discusses the new parole in place program for undocumented spouses and stepchildren of U.S. Citizens recently announced by the Biden administration.
In this video you will learn about the parole in place application process, who is eligible to apply, and what will happen to those with pending extreme hardship waivers with USCIS.
Overview
On August 19, 2024, the United States Citizenship and Immigration Services (USCIS) began accepting applications for parole in place for undocumented spouses and stepchildren of U.S. Citizens under a new program called Keeping Families Together.
The fee to apply for parole is $580. No fee waivers or fee exemptions are available for this process at this time.
What is parole in place?
Parole in place is a discretionary authorization issued for a 3-year period, that allows certain noncitizens who are present in the United States without admission or parole to become “applicants for admission.”
If granted parole, these individuals may apply for adjustment of status to lawful permanent residence (green card holder) during the parole period, without being required to leave the United States and be processed by a U.S. consulate overseas.
Previously, undocumented spouses of U.S. Citizens who entered without inspection, were required to travel outside the United States to legalize their status through an extreme hardship “waiver” process which required a face-to-face interview at a U.S. Consulate abroad. This process has been very challenging on families because approval of the hardship waiver can take several years and lead to prolonged family separation.
It is estimated that as many as 500,000 noncitizen spouses of U.S. citizens could be eligible for parole in place, and an additional 50,000 noncitizen stepchildren of U.S. citizens.
What are the eligibility requirements for parole in place?
To be considered for a discretionary grant of parole in place under Keeping Families Together, you must meet the following eligibility criteria:
If you are the noncitizen spouse of a U.S. citizen, you must:
Be present in the United States without admission or parole (entered without lawful inspection);
Have been continuously physically present in the United States since at least June 17, 2014, through the date of filing your request;
Have a legally valid marriage to a U.S. citizen on or before June 17, 2024;
Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security; and
Submit biometrics and undergo required background checks and national security and public safety vetting.
If you are the noncitizen stepchild of a U.S. citizen, you must:
Have been under the age of 21 and unmarried on June 17, 2024;
Be present in the United States without admission or parole (entered without lawful inspection);
Have been continuously physically present in the United States since at least June 17, 2024, through the date of filing your request;
Have a noncitizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before your 18th birthday;
Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security*; and
Submit biometrics and undergo required background checks and national security and public safety vetting.
Please read the frequently asked questions on the USCIS webpage here.
In this video, attorney Jacob Sapochnick discusses a hot topic addressing what is the fastest method to immigrate a foreign spouse to the United States.
Many couples often wonder what the best option is to immigrate their foreign spouse, such as applying for an immigrant visa at a U.S. consulate overseas or applying for adjustment of status from inside the United States.
To learn more, please keep on watching this video.
Overview
There are two main methods by which a U.S. Citizen can immigrate his or her foreign spouse to the United States.
The most suitable method will depend on the consideration of various factors such as:
Is the foreign spouse currently outside of the United States?
Is the foreign spouse already inside the United States in lawful status (for example are they on an F-1 student visa, B-1 business visitor visa, or some other temporary visa)?
Does the foreign spouse have lawful status in the U.S.?
Is it important for you to obtain employment authorization during the immigration process?
Is prolonged separation an issue for you?
These are important factors that will determine which process married couples may wish to consider.
Welcome back to ImmigrationLawyerBlog! In this video, attorney Jacob Sapochnick discusses a new rule from U.S. Citizenship and Immigration Services (USCIS) that will provide relief to nearly 800,000 applicants seeking a renewal of their employment authorization document also known as a work permit by automatically extending certain EADs from 6 months to 18 months.
Overview
On April 4, 2020, USCIS announced a temporary final rule (TFR) that increases the automatic extension period for employment authorization and EADs available to certain EAD renewal applicants from up to 180 days (6 months) to up to 540 days (or 18 months) from the printed expiration date of a previously issued EAD.
Effective April 8, 2024, this temporary final rule will apply to two categories of EAD applicants:
(1) applicants who timely and properly filed their Form I-765 applications on or after October 27, 2023, if the application is still pending on April 8, 2024; and
(2) applicants who timely and properly file their Form I-765 applicationon or after April 8, 2024and on or before September 30, 2025 (540 days after publication of this temporary final rule in the Federal Register).
Applicants must have one of these qualifying eligibility categories to receive an automatic extension of their employment authorization and/or EAD validity: A03, A05, A07, A08, A10, A12, A17*, A18*, C08, C09, C10, C16, C19, C20, C22, C24, C26*, and C31. These eligibility categories are published on the USCIS Automatic EAD Extension webpage.
In this video, attorney Jacob Sapochnick discusses a new form of relief provided by USCIS, specifically for green card applicants who are facing compelling circumstances. Such individuals may request a renewable 1-year temporary work authorization (EAD) based on their “compelling circumstances,” by filing Form I-765 Application for Employment Authorization. Dependents may also request a compelling circumstances EAD.
If you would like to know more about who can apply for this work permit and eligibility, just keep on watching!
Overview
Employment Authorization Document (EAD) based on Compelling Circumstances
This temporary employment authorization may be provided to certain nonimmigrants who are the beneficiaries of approved employment-based immigrant visa petitions, and who are facing compelling circumstances, such as losing a job.
In order to qualify for a compelling circumstance employment authorization document (EAD), you must:
Be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date you file the application for employment authorization;
Be the principal beneficiary of an approved Form I-140;
Establish that an immigrant visa is not authorized for issuance to you based on your priority date, preference category, and country of chargeability according to the Department of State’s Visa Bulletin on the date you file your application for employment authorization; and
Demonstrate that compelling circumstances exist that would justify USCIS using its discretion to issue you an independent grant of employment authorization.
In this video attorney Jacob Sapochnick discusses how Google layoffs are impacting foreign workers in the United States going through the employment-based green card process known as PERM. Layoffs in Silicon Valley have been more and more common, with major tech companies like Amazon, Facebook, and Twitter abruptly ending thousands of jobs, leaving workers scrambling for alternatives.
Specifically, what happens when a foreign worker is going through the employment-based green card process with their U.S. employer and subsequently gets laid off?
In this video we discuss the different scenarios that may apply and go over the different options for laid off workers going through the green card process.
If you want to know more just keep on watching.
Did you know?PERM Labor Certification is the process used for obtaining Labor Certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (Green Card). The employment-based preference categories that require PERM Labor Certification are EB-2 (other than a National Interest Waiver) and EB-3. Before a U.S. employer can file the I-140 Immigrant Petition for Alien Worker with USCIS, the employer must first obtain an approved Labor Certification from the Department of Labor (DOL).
Overview
What are the immigration options for those whose employment has been terminated?
Unfortunately, the uncertain economic climate has led to the loss of thousands of jobs, negatively impacting foreign workers. In particular H-1B workers have been some of the most affected.
Below we discuss some of the options that may be available to nonimmigrant workers who have been terminated and wish to remain in the United States following their termination. Additionally, we discuss how some workers can preserve their I-140 petition’s priority date or even their green card process depending on the stage of employment termination.
In this blog post, attorney Jacob Sapochnick talks about a brand-new proposal to increase the government filing fees for certain types of immigration benefits filed with the United States Citizenship and Immigration Services (USCIS).
Following the announcement, on January 4, 2023, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) in the Federal Register outlining the proposed fee schedule which seeks to increase the filing fees of certain nonimmigrant visa classifications, as well as adjustment of status (green card) applications.
The government will be accepting public comments for the proposed rule until March 6, 2023. After the comment period has closed, the agency will review the public comments and issue a final version of the rule.
TIP:If you know that you will be applying for an immigration benefit that is subject to the proposed fee increase, you should apply as soon as possible to avoid incurring the higher fee.
What is Temporary Protected Status and who can qualify for the program? In this video, attorney Jacob Sapochnick provides information about the Temporary Protected Status program including which countries have received a Temporary Protected Status (TPS) designation, how to register, and much more.
Did you know? Individuals who qualify for Temporary Protected Status (TPS) are allowed to lawfully live and work in the United States without fear of deportation, during the period of their country’s TPS designation (typically this is anywhere between 6 to 18 months depending on the country). To qualify for work authorization, individuals must file Form I-765 Application for Employment Authorization to request an Employment Authorization Document (EAD) from the US Citizenship and Immigration Services (USCIS). With the EAD, applicants can lawfully work in the United States. Additionally, TPS eligible nationals may qualify for travel authorization.
Want to know more? Just keep on watching.
Overview
What is Temporary Protected Status
Temporary Protected Status (TPS) is a special program made possible by the United States Congress that allows foreign nationals of certain countries that are considered unsafe, the right to live and work in the United States temporarily. TPS does not provide a pathway to citizenship, and instead is utilized by individuals from participating countries as a humanitarian solution because they cannot safely return to their home countries.
Under the program, the Secretary of Homeland Security is authorized to designate a specific foreign country for TPS if they determine that conditions exist in that country that prevent its nationals from safely returning to their countries of origin.
The Secretary may designate a country for TPS if any of the following temporary conditions exist in the foreign country:
Ongoing armed conflict (such as civil war)
An environmental disaster (such as earthquake or hurricane), or an epidemic
Other extraordinary and temporary conditions
In order to participate in the TPS program, you must:
Be a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country;
File during the open initial registration or re-registration period for your country, or meet the requirements for late initial filing during any extension of your country’s TPS designation;
Have been continuously physically present (CPP) in the United States since the effective date of the most recent designation date of your country announced by the Department of Homeland Security; and
Have been continuously residing (CR) in the United States since the date specified for your country.
Pass the necessary security and background checks.
What’s happening with the status of green card processing with USCIS? In this video, attorney Jacob Sapochnick, discusses an exciting new update for green card applicants recently handed down by the Presidential Advisory Commission.
Want to know more? Just keep on watching.
Overview
Things are looking up in the world of immigration. We have recently learned that a U.S. Presidential Advisory Commission has voted to reduce the processing time of green card applications to a period of 6 months. The Advisory Commission has recommended these recommendations be enacted by President Biden, to provide relief to applicants waiting in the enormous backlogs to attain permanent resident status.
What is this all about?
The President’s Advisory Commission on Asian Americans, Native Hawaiians, and Pacific Islanders (PACAANHPI) has recommended that the U.S. Citizenship and Immigration Services (USCIS) establish a new internal cycle time goal by eliminating inefficiencies such as redundancies, facilitating automation of approvals, and improving internal systems. The Advisory Commission hopes that the new cycle time for processing forms will drastically reduce green card processing times to just 6 months for all forms related to all green card applications, family-based green card applications and DACA renewals. The Commission has also recommended for the National Visa Center (NVC) to hire additional officers to support additional capabilities to schedule immigrant visa (IV) interviews.
The objective is to increase processing capacity by 100% by August 2022 and reach 150% capacity by April of 2023.
Once the National Visa Center is able to catch up with pent up demand, U.S. Embassies and Consulates worldwide should also increase capacity by hiring more officers and become more efficient to meet the 6-month time cycle proposed by the Presidential Advisory Commission.
If this recommendation is adopted, it will speed up the processing of thousands of green card applications currently stuck in the backlogs and result in faster approvals.
The Advisory Commission reviewed I-485 green card applications pending in the United States and requested USCIS to try to process associated I-765 work permits and I-131 travel permits also within 90 days.
Immigration Lawyer Blog
