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

May 27, 2021
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Summary

Many immigrants without lawful status first came into the United States with valid visas like tourist visas and other visitor visas, and stayed past the end of their approved visit. Under U.S. immigration law, there are consequences for people who end up overstaying their visa, including a bar from re-entering the country when you leave. If you apply for a green card after a visa overstay, a re-entry bar will significantly lengthen your application process or prevent you from applying altogether. But you may be able to apply for a waiver that legally forgives your overstay so that you can apply for a green card. In this article, we explain how you can know if you’ve overstayed your visa, whether or not a pathway to a green card is available to you, and how to use waivers of inadmissibility for unlawful presence.

Overview

How do I Know I Have Overstayed my U.S. Visa?

You have overstayed your visa if you have remained in the United States past your approved duration of stay. Your I-94 travel record has your approved duration of stay. Every foreign national who visits the United States has a Form I-94 to their name, that details their arrival date and the date by when they’re expected to leave. This date is often different from the visa expiry date on the visa stamp you received in your passport. 

The expiration date on your visa stamp indicates how long you can use that visa to enter the U.S. By contrast, the authorized stay date on your I-94 record specifies how long you can stay in the United States after you’ve entered. So your visa could be valid for many years,  but your authorized stay for any trip could be for only a couple of weeks or months.

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.

What is unlawful presence?

If you realize after looking up your I-94 arrival and departure record that you have been in the United States past your authorized stay date, you have begun to accrue unlawful presence. Unlawful presence refers to the amount of time you spend in the United States without lawful immigration status. Unlawful presence begins the day after your authorized period of stay expires. 

If you came into the United States under the Visa Waiver Program (VWP), unlawful presence starts 90 days after your first day in the country. If you came into the United States on a nonimmigrant visa, unlawful presence begins 180 days after the date on your I-94 record.

There are consequences for accruing unlawful presence based on the length of your unlawful presence, including a 3-year bar or a 10-year bar from re-entering the United States after you leave. You also risk deportation when you are without lawful immigration status in the United States for any extended period.

What is illegal entry?

You can also be unlawfully present in the United States if you entered illegally. Illegal entry means that you came into the United States without official authorization from the U.S. government, in the form of a valid visa or visa waiver, or that you were not inspected by border patrol officials when you entered.

Can I Apply for a Green Card if I Entered the U.S. Illegally?

It is a complicated process to get a green card if you entered the United States illegally. 

Generally, if you entered the United States illegally, you can only apply for a green card from your home country (consular processing). You can’t apply for a green card from the United States(called an adjustment of status application). Sometimes, you cannot get a green card at all—if you entered the United States illegally multiple times, you will be deported and permanently barred from entering the country again. If you’re permanently barred, you can’t apply for a green card, U.S. citizenship, or other immigration benefits.

If you enter illegally and stay for less than 180 days, you will not face a re-entry bar when you go home to apply for a green card. But if you entered legally and stayed for more than 180 days, then you will face either a 3-year or 10-year bar when you go home to submit your green card application.

If you’re a Deferred Action for Childhood Arrivals (DACA) recipient who applied for DACA more than 180 days after you turned 18 and never had Advance Parole, you’ll face a 3-year or 10-year bar.

Bars to entry

In U.S. immigration law, bars of entry are penalties for people who have spent a period of unlawful presence in the United States. There are three types of re-entry bars; a 3-year bar, a 10-year bar, and a permanent bar.

If you spend more than 180 days and up to 365 days of unlawful presence in the United States, you’ll face a 3-year bar. If you have a year or more of unlawful presence, you won’t be able to come back to the country for ten years when you leave. If you have repeatedly entered the United States unlawfully, you will be permanently barred from returning to the country.

Can I Apply for a Green Card if I Overstayed my Visa?

Yes, you can apply for a green card if you overstayed a visa. You can apply to become a green card holder from inside the United States (known as an adjustment of status) or abroad (through consular processing). As discussed earlier, if you have any unlawful status and leave the United States, you will have to get a new visa, and you will face a bar upon your return. This is a time-consuming and expensive process.

If you meet the eligibility requirements to adjust status to permanent residence, you can avoid this hassle. You won’t have to leave the United States to apply for your green card, and so you won’t trigger any re-entry bars.

Who is allowed to adjust status even while in expired immigration status?

Typically, you can’t apply for a green card from the United States if you don’t have valid (unexpired) immigration status. U.S. immigration law makes an exception for the immediate relatives of U.S. citizens, that is, the parents, children, and spouse of a U.S. citizen. If you’re an immediate relative of a U.S. citizen who entered legally (through a nonimmigrant visa, for example), you can adjust status to a green card holder by filing Form I-485 even if you overstayed a visa. 

Can I travel outside the U.S. while waiting for my Green Card even though I overstayed my visa?

While waiting on a pending green card, you can travel out of the United States with Advance Parole. Advance Parole is a travel document that makes it possible for you to travel abroad without abandoning your green card application. If you entered the United States legally and overstayed your visa, and your green card sponsor is a U.S. citizen, you can apply for Advance Parole. You’ll be able to go abroad and return to the United States without facing re-entry bars.

It would be best if you were very cautious in doing this though, as this exception for immediate relatives of U.S. citizens may change at any time and is not applied in the same way throughout the United States. The policy may change suddenly when you’re abroad, and you may find yourself unable to get back to the United States to finish your green card application. For this reason, if you overstayed a visa, it’s a wise idea to hold off on traveling until you receive your green card.

Who is not allowed to adjust status while in expired immigration status?

Only close family members of U.S. citizens are allowed to adjust status with an expired visa. If you’re an immediate relative of a U.S. permanent resident, this exception does not apply to you, unfortunately. You will have to apply for a green card from your home country. If you’re subject to a re-entry bar, you’ll have to wait it out before you can return to the United States. You may also request that the U.S. government pardon your unlawful presence with a “waiver of inadmissibility.”

What are Waivers of Inadmissibility, and How Can I Use Them?

A “waiver of inadmissibility” is a legal request you can make to the U.S. government to pardon the re-entry bar you’re facing for unlawful presence. To apply for the waiver, you’ll have to prove to USCIS that your U.S. citizen or lawful permanent resident relative will experience “extreme hardship” if you have to wait out your re-entry bar. For example, if you’re a parent who overstayed a visa, the burden of childcare could be tough on the parent you’re leaving behind in the United States.

You’ll have to submit the official waiver request to the U.S. Citizenship and Immigration Services (USCIS) using Form I-601. Form I-601 is officially called “Application for Waiver of Grounds of Inadmissibility.” Filing a waiver of inadmissibility is an extremely complex process, and you should only do it with the guidance of an immigration lawyer.

Conclusion

Getting a green card after overstaying a visa can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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