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Marrying a US Citizen After a Visa Overstay

Written By The Shapiro Law Group on April 24, 2020

Marriage after a visa overstay can return an immigrant to lawful status, but it does not immediately solve all the problems resulting from the overstay. Spouses of U.S. citizens enjoy additional legal protections not afforded to other immigrants. However, these protections should not be taken for granted.

Visa Overstay: Defined

A visa “overstay” occurs when an immigrant remains longer in the United States than their visa permits them. However, the visa does not define how long a person may stay in the United States. Rather, the visa defines a set period during which the immigrant may lawfully enter the United States.

Rather, the I-94 Arrival/Departure form defines how long an immigrant may stay in the United States. The I-94 form has an “admit until date,” which is the date in which an immigrant must leave the United States or risk an overstay. The “admit until date” may be shorter than the visa duration.

Rules for Spouses and Immediate Relatives

Adjustment of status is the procedure by which non-immigrant visitors may change their immigration status to permanent resident. Adjustment of status is not available to immigrants who violate the immigration laws, i.e., overstay their visa. However, immediate relatives of U.S. citizens are exempted from this overstay provision. Immediate relatives are spouses, parents, and unmarried children.

Immediate relatives must lawfully enter the United States after an overstay to adjust their status. Lawful entry counts so long as the immediate relative enters the U.S. on a valid visa – even if they overstayed.

Spouses can adjust their status after an overstay by returning to their home country and go through the green card process at a U.S. consulate. However, this process is time-consuming and difficult. Conversely, spouses who are already present in the United States after a lawful entry can begin adjusting their status immediately. Couples may file a Form I-485 Application and Form I-130 Petition along with the adjustment of status package to start the process.

Penalties for Overstay

Immigrants who overstay are subject to two different bars to entry: three and ten years. The bars to entry include all travel to the United States. Individuals are subject to the three-year bar if they unlawfully stayed in the United States for 180 days (approximately six months) or more. Individuals are subject to a ten-year bar if they were unlawfully present for one year or more.