I Overstayed My Visa, Can I Still Get A Greencard Through Marriage to A U.S. Citizen?

Before I address the question in the headline, it’s important to make an initial distinction. If you obtained your original non-immigrant visa (i.e., student visa, tourist visa, etc.) with the intent that you would later marry a United States citizen and secure a greencard through that marriage, then you’ve now entered the realm of immigration fraud and could face an inevitable deportation proceeding in your future.

For those that came to the U.S. on a valid non-immigrant visa, and then through the course of their studies or while working at their job they met someone, got engaged and are now married, it might come as quite a surprise that the immigration laws are very forgiving to people who overstay their visas under these circumstances. In fact, this happens quite regularly in the U.S.

Non-immigrant visas typically have a limited validity period and while some have extensions available, most expire and leave the visa holder in a position where they start accruing “unlawful presence.” Unlawful presence is exactly what it sounds like. You’re present in the United States without a valid visa or authorization to be in the country. From the moment your visa expires, your unlawful presence accrues every single day. Extended periods of unlawful presence will trigger the 3-year (i.e., 180 days of unlawful presence), 10-year (1 year of unlawful presence) and permanent bar (over 1 year of unlawful presence), which establishes the time period you must wait before you can lawfully re-enter the United States. As for the permanent bar, overcoming this drastic measure is only possible in extremely limited circumstances.

When it comes to married individuals, overstaying your visa is not a direct bar to securing a greencard. Although you will accrue unlawful presence while your greencard application is pending, once the application is approved that period of unlawful presence will be waived. As I previously stated, the restrictive immigration laws are relaxed in these situations. The main reason is because there is an accepted public policy that keeping immediate family members (spouses, children, parents) together is more important than enforcing the strict visa overstay regulations.

However, it is important to note that if you have overstayed your visa, you will not be able to work in the United States until your greencard application is approved and the greencard is issued to you. Currently, the entire application process from beginning to end can take anywhere from one to two years, so for many, not being able to work can place financial strain not only on the individual, but also on their spouse and family. In addition, since your visa is expired you will not be able to travel internationally and could face possible detention and deportation if attempting to travel domestically through an airport or across a border checkpoint. If your only form of identification is your passport, you face the risk of revealing your expired visa to a TSA agent or other customs agent, which would likely trigger an arrest and detention as well as deportation proceedings.

While overstaying your visa does not prevent you from obtaining a greencard through marriage to a U.S. citizen, there are certainly precautions to take to ensure that you are well protected while you await determination of your greencard application.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.