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

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Generally, the answer to this question is yes, if you meet certain conditions. “Overstaying a visa” is sometimes hard to define. This confusion creates many issues for immigrants. Obviously, if you remain in the United States past the authorized admission period, you have overstayed your visa. The issue could also be a duration of status issue. For example, if a student visa lasts four years and the student graduates early, the visa expires when the student completes the program. 

Incidentally, a visa is simply an entry document that has no expiration date. So, immigrants technically never overstay their visas. Instead, the I-94, which is usually an electronic document, contains the out-of-status date.

These complexities underscore the need for a good Dayton immigration lawyer in these situations. An attorney could get ahead of the problem and eliminate the possibility of adverse action and even help people who overstay their visas obtain green cards. However, the opposite is also true. Individuals who try to “fix” visa overstay issues could create long-term immigration problems.

Bars to Reentry

A reentry bar, which became effective in 1996, is basically a waiting period for a status adjustment. The waiting period applies to individuals who entered the country illegally, who overstay their visas, or whose lawful immigration status expired or was rescinded, revoked, or otherwise terminated.

People who are in the country without proper documentation for less than 180 days must wait three years to apply for reentry or status adjustment. Undocumented residence over 180 days means a 10-year waiting period.

A waiting period waiver is available in some limited circumstances. For example, a Dayton immigration lawyer can usually obtain a waiver if the individual would face extreme hardship, like torture, if s/he returned to his/her country of origin.

Status Adjustment

An out-of-status immigrant who is the spouse, parent, or unmarried minor child (under age 21) of a U.S. citizen, not a lawful permanent resident, may be eligible for immediate visa overstay forgiveness. 

Furthermore, the petitioning relative must have lawfully entered the United States to be eligible for an immediate relative adjustment of status. An expired visa still counts as a valid visa when entering the U.S. But not anyone can request this adjustment of status successfully – only those who have entered the country lawfully.  

To be considered for a waiver, the petitioning relative must submit the following forms along with any required supporting documentation:

  • I-130, Petition for Alien Relative,
  • I-130A, Supplemental Information for Spouse Beneficiary (if the beneficiary is a spouse),
  • I-485, Application to Register Permanent Residence or Adjust Status,
  • I-864, Affidavit of Support,
  • I-693, Report of Medical Examination and Vaccination Record,
  • I-765, Application for Employment Authorization (optional), and
  • I-131, Application for Travel Document (optional).

Applicants should be almost 100 percent sure they will qualify for the exemption. If not, they are voluntarily putting themselves on the U.S. Citizenship and Immigration Service’s radar. The USCIS usually holds off on adverse actions while it processes the request. If it denies the application, deportation proceedings are often just around the corner.

Work With a Compassionate Montgomery County Lawyer

Immigrants who overstay their visas often have legal options. For a confidential consultation with an experienced immigration lawyer in Dayton, contact the VanNoy Firm. Convenient payment plans are available.



About The Author

Anthony S. VanNoy

Trial Attorney

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