ADJUSTMENT OF STATUS AFTER A VISA OVERSTAY

A couple of people contacted my office recently who were facing the same dilemma. They had overstayed on their visas and wanted to know about the possibility of staying in the United States with their US citizen spouses. They wanted to know:

• Would they have to leave the country?
• If they did leave, would they be able to come back and reunite with their spouse?

Fortunately, I was able to fill them in on the fact that spouses of US Citizens enjoy special privileges.

One such privilege is the ability to stay in the country, file for adjustment of status and obtain a green card despite a visa overstay.

This post briefly discusses the options that you may have if you find yourself in a similar situation.

The Typical Adjustment of Status Process

Typically, when a family member files a petition for you while you are in the US, you can simultaneously file for adjustment of status and get a green card as long as you meet the requirements.

One requirement is that you maintain lawful immigration status. Under the regulations, if you are not in lawful immigration status at the time of filing your Adjustment of Status, your application will be denied. You will be considered to be in unlawful immigration status if you have never had lawful status (ie. you entered the U.S. without inspection at the border). Additionally you will be considered to without lawful immigration status if your authorized period of stay has expired.

I know that doesn’t sound great if you have overstayed on your visa. However, the good news is that as an “immediate relative” of US citizen you can successfully file for adjustment of status, even if your authorized period of stay has passed as long as you:

1. meet the requirements to be able to adjust status and
2. you don’t have other immigration or criminal violations that make you inadmissible and will prevent you from being able to adjust status and obtain a green card.

Immediate Relatives

Before we dive in and talk about the requirements, it is important to define the term  “immediate relative.” When I think of immediate family members, I think of parents, brothers, sisters and spouses. For US immigration purposes, siblings do not count as immediate family. So, when you hear the term “immediate relatives” in the immigration context know that it means spouses, unmarried children under 21 years of age, and parents as long as the petitioning U.S. citizen is 21 years of age or older.

Requirements for Adjustment of Status after a Visa Overstay: Lawful Entry and US Citizen Immediate Relative

Lawful Entry Required

In order to be able to successfully file for adjustment of status, you must not have entered illegally(ie. you crossed the border without talking to any US government officials). If you are in this type of situation, you will need to seek a waiver and show that your US citizen relative would suffer extreme hardship if the waiver is not granted. This process requires you to leave the country at some point which creates a lot of anxiety. A lot of people simply don’t want to leave the country if there is a possibility that they will not be allowed to return and reunite with their family.

Immediate Relative of a US Citizen

In addition to people who entered illegally, immediate relatives of green card holders who entered legally but overstayed on their visa are also unable to successfully file for adjustment of status. If you are in this position, you will be required to seek a waiver if you want to pursue a green card based on the permanent resident status of your relative.

Possible Problems: Adjustment of Status After a Visa Overstay

So, let’s say that you are an immediate relative of a US citizen who has overstayed on your visa. You are in a good starting place. However, there are factors that may disqualify you from being able to stay in the US and adjust status. Most commonly fraud and convictions create problems.

Misrepresentation/Fraud

If the US government suspects that you committed visa fraud, you will be unable to adjust your status and obtain a green card. So, how does this come up? Let’s say that you arrived on a visitor visa, then immediately got married and moved in with your spouse. In this scenario you may be accused of fraud. The US government could say that your true intent at the time of your entry was to stay in the US permanently. Therefore, you misrepresented your intentions and committed visa fraud when you entered as a temporary visitor.

Criminal Convictions

You also need to watch out for Criminal Issues. Convictions of certain crimes will prevent you from being able to successfully file for adjust of status without going through a waiver process. The regulations state that foreign nationals are inadmissible to the U.S. if they have been convicted of or admit to committing a Crime Involving Moral Turpitude (CIMT) unless it was a purely political offense.

Conclusion

If you are married to a US citizen and overstayed on your visa please understand that there is no reason to panic. Many people who have overstayed on their visas are able to successfully file for adjustment of status. However, it is important that you sit down with an immigration lawyer to talk about your eligibility and to plan a strategy.