What happens when you overstay your visa and are planning to marry a U.S. citizen? In this article, we go over your options, key considerations, and risks to watch out for.
What Is An Overstay?
An overstay occurs when you stay in the U.S. past the date set on your I-94. The I-94 is the guiding date for how long you can stay in the United States with your visa, and you can verify it on the CBP website.
What Happens If You Overstay Your Visa and Get Married
If you overstay a temporary visa and get married, you still continue to accrue unlawful stay every day you remain in the United States. The consequences for unlawful stays are as follows:
- Statutory 3-year bar: if you accrued more than 180 days but less than 1 year
- Statutory 10-year period: if you accrue one year or more of unlawful presence
- Permanently bar: if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence.
However, it is possible to avoid the above consequences.
Can I Adjust Status if I Entered Legally and Overstayed, Then Married a US Citizen?
To avoid the consequences of overstaying, you need to begin the green card process. It is possible to adjust status if you entered legally, overstayed, and married a U.S. citizen. However, case specifics matter, and there are significant risks that make it highly advisable to consult with an immigrant attorney.
If the spouse is a Green Card holder (LPR) rather than a citizen, the overstay is generally not forgiven.
How Can Overstaying a Visa Affect My Marriage-based Green Card Application?
Overstaying a visa can invite additional scrutiny of your green card application. USCIS adjudicators will closely examine whether you initially came to the United States for marriage in some cases, which is considered wilful misrepresentation.
Additionally, officers may dig deeper to verify that your relationship is genuine and not solely means to stay in the United States.
What Forms Are Needed For a Marriage-Based Green Card After Visa Overstay?
If your spouse is a U.S. Citizen and you married during your overstay, the main forms needed for a green card application are the I-130, Petition for Alien Relative, and the I-485, Application to Register Permanent Residence.
Typically, these forms are filed concurrently for the speediest results.
Can a Visa Overstay Be Forgiven By Marriage?
Yes, an overstay can be forgiven by marriage to a U.S. citizen. However, it is case-specific, and to avoid risk, a consultation with an immigration attorney is advised.
Which immigration firms offer help with marriage cases involving overstays?
When looking for support with marriage and overstays, it’s important to consult an attorney who specializes in immigration and overstays.
The attorneys at VisaNation law firm have vast experience in marriage and overstays
A Special Note on J-1 Visas
For individuals who have overstayed on a J-1 visa, you must first verify whether you are obligated to leave the country under the two-year foreign residency requirement. Even if you marry a U.S. citizen, you may need to leave the country, unless you qualify for a waiver, before you can apply for a green card.
The most common waiver routes include a “no-objection statement” from your home country’s government or a waiver that demonstrates that your spouse or child will face exceptional hardship should you be denied a green card and forced to return to your home country.
Can You Marry Someone Who Has An Overstayed Visa?
Yes, as a U.S. Citizen, it is acceptable to marry someone who has overstayed a visa. However, the process must be navigated carefully due to higher scrutiny with the green card application.
Furthermore, it’s important to be aware of the penalties for marriage fraud, perjury, and/or conspiracy. Knowingly helping someone file a false application carries a significant penalty.
Can I Be Deported If I’m Married to a U.S. Citizen?
Yes, marriage on its own does not grant protections from deportation. Until you file the adjustment of status form, you are at risk of removal if you have overstayed and are out of status. Additionally, if you are found inadmissible for other reasons, such as a criminal record, you can still be placed under removal proceedings and detained.
Can I Come Back to the US If I Overstayed?
You can come back to the U.S. if you overstayed, only if you are granted a waiver via Form I-601 (if you are already outside the U.S.) or Form I-601A if you are currently in the U.S. and applying for a ‘provisional’ waiver before leaving for your consular interview.