If you overstay a visa, you begin to acquire an unlawful presence in the US which ruins your chances of getting more immigration benefits. For example, US immigration may bar you from re-entering the country if you leave after overstaying your visa. As a result, the re-entry bar may also affect your green card application.
Your case may differ if you overstay your visa but marry your US citizen fiancé. You may obtain a green card through Adjustment of Status or Consular Processing. However, there are specific considerations you should keep in mind during these processes.
Here’s an overview of visa overstay, its impacts, and how marrying a US citizen may solve this problem.
What Is a Visa Overstay?
Every foreign national receives Form I-94, Arrival/Departure Record upon entering the US. This document records the traveler’s arrival date and the duration they are allowed to remain in the country. When this duration expires before the foreign national leaves the country, they’ll have overstayed their visa.
If you overstay your visa, you begin to acquire an unlawful presence in the US. Unlawful presence has its consequences depending on how long you overstayed your visa. These consequences include:
- Re-entry bar of either 3 or 10 years, or permanently
- Ineligibility for some immigration benefits
- Visa ineligibility
Visa Overstay Forgiveness
However, the immigration laws exempt the immediate relatives of a US citizen from the consequences of a visa overstay. These immediate relatives include spouses, parents, and children of US citizens under 21 years. Therefore, if you marry your US citizen fiancé, you can apply for a green card. But first, you must have proof of the following:
Lawful Entry into the US
You must prove that you lawfully entered the United States through a designated port of entry, even if your visa expired. In addition, you will need to provide a copy of your I-94 travel record you received from the CBP officer after inspection at a port of entry.
However, you’re ineligible for adjustment of status if you came to the US on the K1 Fiancé Visa sponsored by a different spouse than the one you intend to marry. In addition, you won’t be eligible to stay in the US, and you may likely face deportation proceedings.
Bona Fide Marriage
You must prove that your marriage to a US citizen is genuine and not intended to avoid immigration processes. Besides your marriage certificate, you can provide evidence such as joint mortgage agreements, joint bank accounts, birth certificates of children, etc.
Immigration officers are always keen on investigating such relationships to erase doubts about marriage or immigration fraud. For this reason, you may need to hire an immigration attorney who is familiar with your case to guide you through the process.
Re-entering the US after a Visa Overstay
Even though the immigration laws exempt you from the consequences of visa overstay as an immediate relative, leaving the country cancels this privilege. The re-entry bar takes effect once you leave the US after overstaying your visa. However, this depends on the length of your visa overstay.
If you overstay your visa for less than 180 days and marry a US citizen, you may leave the country and apply for a green card through consular processing. However, if the overstay is more than 180 days, you’re likely to face numerous challenges with green card applications through consular processing. In addition, given the status of the re-entry bar, your application for an immigrant visa will likely be denied. In such a case, it’s best to remain in the US and apply for a green card through adjustment of status.
The circumstances of visa overstay and marriage are always too complicated to handle without the help of an experienced immigration attorney. Therefore, you may need to consult an attorney before traveling out of the country after a visa overstay, even if you’ve married a US citizen.
Frequently Asked Questions About Visa Overstay
It’s common to have many questions regarding your legal status in the US if you’ve overstayed your visa and married a US citizen. Here are answers to some of these common questions.
What Happens if You Overstay Your Visa and Get Married?
If you overstay your visa and marry a US citizen, you can apply for a green card by adjusting your status. This is because the immigration laws exempt immediate family members, including spouses of US citizens, from the re-entry bar and other consequences of visa overstay.
Overstayed Visa Waiver Married US Citizen?
If you’ve overstayed a visa and married a US citizen, you can consult an immigration attorney about applying for a green card by adjusting your status. But first, you must prove that you lawfully entered the country even if your visa has expired. You also need to prove that your marriage is bona fide to eliminate marriage or immigration fraud doubts.
Can I Marry Someone Who Has Overstayed Visa?
Yes, you can marry your foreign citizen fiancé regardless of their visa status. Once married, you may sponsor your spouse for a green card. However, there must be sufficient proof that your foreign spouse didn’t violate the terms of their visa by intentionally overstaying to get married.
Can a US Citizen Marry Someone With an Expired Visa?
Yes, a US citizen can marry a foreign national whose visa has expired. The foreign citizen only needs a valid visa to enter the US and not for marriage purposes. After the marriage, the US citizen can sponsor their foreign spouse for a green card.
Does Overstaying Affect Spouse Visa Application?
A visa overstay potentially affects the visa application for a foreign spouse through consular processing. When the foreign spouse leaves the country, they cancel their visa overstay exemption. As a result, US immigration may bar the foreign spouse from re-entering the country, affecting their application for a marriage-based visa.
How to Get a Green Card if You Overstay Your Visa?
You can apply for a green card through the adjustment of status process if you’re in the US or consular processing if you live abroad. However, there are specific conditions that apply to each of these choices. Given that each case has unique circumstances, you may need the help of an immigration attorney.
Marrying a US citizen spouse automatically waives the consequences of a visa overstay. As a result, you can apply for a green card through consular processing or adjustment of status. However, there are several things you need to consider depending on the circumstances of your case. In addition, US immigration will need sufficient evidence to be content that you didn’t intentionally overstay your visa to marry your US citizen spouse or avoid immigration procedures, among other reasons.
Working with an immigration attorney, such as Serah Waweru and her team, reduces the burden of keeping up with all the immigration requirements. With their experience, an attorney knows the exact documents you need to provide to support your green card application after a visa overstay.
Contact The Law Office of Serah Waweru today for a consultation and begin your green card application process as soon as possible.