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I Overstayed a Visa and Married a U.S. Citizen. Can I Get a Green Card?

Written By The Shapiro Law Group on April 18, 2022

If you overstayed a visa and married a U.S. citizen, it may be possible to obtain a green card. Some undocumented immigrants in the U.S. enter the country with visas and stay in the country long after their visas expire. They sometimes marry a U.S. citizen to obtain a green card through marriage. While this method of citizenship can be successful, it is not foolproof.

Risks You May Face if You Overstayed a Visa and Married a U.S. Citizen

When attempting to gain legal immigration status following a visa overstay, there are some challenges you may face. If you used your visa with the specific goal of entering the country and obtaining a green card via marriage, the government may accuse you of visa fraud and deny your application.

Additionally, you may be inadmissible for a green card if you leave the U.S. instead of adjusting your status and use consular processing to request a green card. Also, you may be unable to stay in the country to adjust your status if you originally entered through a K-1 fiancé visa that a citizen besides the intended spouse sponsored.

What Happens When Someone Overstays a Visa?

What happens if a person overstays their visa will depend on the length of time of the overstay. 

A Visa Overstay of 180 Days or Less

If someone overstays a visa for 180 days or less, that person will typically need to leave the country and apply for a new visa. The overstay could result in the denial of a new visa, however. In addition, individuals won’t qualify for the Visa Waiver Program. However, if individuals are married to an American citizen, they may apply for Form I-485 Adjustment of Status. This permits them to obtain a green card without leaving the country, provided they entered on either a visa or visa waiver.

A Visa Overstay of Over 180 Days but No Longer Than a Year

Individuals with a visa overstay of less than a year can still obtain green cards via Form I-485 Adjustment Status without leaving the United States. Despite this, it’s important for them to stay in the country before acquiring their green card because they’ll receive a three-year bar if they leave the country at this time. This would render them unable to obtain a green card unless they’ve either spent a minimum of three years outside the country or received an I-601A waiver.

A Visa Overstay of More Than a Year

Immigrants who overstay their visa for more than a year face a ten-year bar once they leave the U.S., but they can still apply to adjust their status if they’re married to an American citizen. However, they risk the same struggles that they may experience with a visa stay of 180 days to a year.

Adjustment of Status

Immigrants who enter the country with a visa, visa waiver, or another form of official permission may file for a green card through adjustment of status if they marry a U.S. citizen. This is because the government considers them immediate relatives of U.S. citizens.

Even if the individual overstays the time allotted on their I-94, he or she can maintain lawful status in the U.S. if he or she applies for adjustment of status before immigration authorities pick him or her up. He or she would then qualify for a green card, unless there are issues with the individual’s eligibility or application.

Many choose to apply for adjustment of status because it provides protection from the three- and ten-year bars that would otherwise apply to those who have been in the country unlawfully for 180 days or longer and left the United States. If an immigrant leaves the country following an unlawful stay of at least 180 days and tries to obtain a green card through the consular process, the interviewing consular officer may request proof of location once the visa expires.

In the event the consular officer becomes aware of the person’s unlawful stay in the country, it may be possible to apply for a waiver. However, the individual would need to be able to prove that inadmittance into the U.S. would present a serious challenge to immediate family members. To prove hardship, individuals would need to show how inadmissibility would impact specific factors, such as finances, health, and education.

Obtaining a Green Card Through Marriage

It may be possible for individuals to apply for a green card via marriage. If immigrants would like to learn how to apply for a spouse visa, the following is the specific process involved. 

Establish the Marriage

To establish marriage, individuals need to complete Form I-130, the Petition for Alien Relative. Additionally, they have to complete Form I-130A to obtain a marriage-based green card. Both of these forms require individuals to provide basic information about themselves, their spouses, and the parents of both the applicant and spouse. This includes contact information, address, and work history. Applicants also need to show that their spouse is either a permanent resident or U.S. citizen. They then need to show that their marriage is legitimate.

Establish Eligibility

Green card applicants also must file Form I-485 along with evidence to support their case. This evidence could include visas, passports, passport photos, and the applicant’s birth certificate. Applicants should file Form I-864 to prove that they and their spouses can support each other. In addition, applicants have to file Forms I-765 and I-131 for both travel and work authorization, although they may not be able to leave the U.S. due to a visa overstay. They must also file Form I-693 to prove the results of a medical exam. However, individuals won’t need to submit Form I-693 until after they complete their green card interview.

The Green Card Interview and Approval

Individuals typically receive an interview notice around five to seven weeks before their interview. Both the applicant and his or her spouse must appear for the interview if the applicant submitted Form I-485. The notice also details the specific information and documentation that the interviewee must bring to the interview. This information includes personal identification via a passport or driver’s license, the birth certificates of the applicant and spouse and their children, proof of income, marriage certificate, and proof of marriage. 

Getting a Green Card Through Marriage After a Visa Overstay

If you overstay your visa, you may have the ability to apply for a green card via marriage. Consult an immigration lawyer to discuss your options and better determine what the application process entails for your situation.
When applying for a green card after getting married, there are some issues to keep in mind. Spousal green card delays, inadmissibility, insufficient evidence of marriage, and other problems can prevent approval. Understanding these risks and working to mitigate them may help make the process smoother. By taking the right steps and collecting ample evidence to support their case, green card applicants can maximize their chances of approval.