What Happens If I Overstay My Visa and Marry a U.S. Citizen?

Overstaying a visa can be a stressful experience. Unfortunately, U.S. immigration law is not particularly forgiving and when you’re living here without legal status, the consequences you face could be dire. Not being able to work or provide proof of legal status that you are in the U.S. lawfully can be an added burden and put you at greater risk for being placed into removal proceedings. However, being married to a U.S. citizen is one circumstance that can provide much needed relief to those who have overstayed their visas. In this post, we will explain why being married to a U.S. citizen can help cure your overstay issue; however, it is important to note that your marriage must be “bona fide” and legitimate and not entered into for the sole purpose of evading immigration consequences for your visa overstay.

Who Are Immediate Relatives of U.S. Citizens?

Immediate relatives include the spouse, parents (if the U.S. citizen is over 21), and unmarried children under 21 of a U.S. citizen. In particular, immediate relatives of U.S. citizens are a class of people that are shielded from many of the restrictive prohibitions built into our immigration laws. By virtue of your relationship to a U.S. citizen, the U.S. government will look past some issues that would normally disqualify other individuals from applying for immigration benefits, including visa overstays.

This classification is important because immediate relatives who entered the United States with a valid visa are eligible to apply for a green card (lawful permanent residence) through a process called Adjustment of Status, even if they’ve overstayed that visa.

What Is Adjustment of Status?

Adjustment of Status allows someone who has lawfully entered the U.S. on a valid visa (B-2, F-1, etc.) to apply for a green card without leaving the country. While there are many requirements to qualifying for adjustment of status, having a lawful entry is essential. If you entered the U.S. without admission or parole, you are typically disqualified, unless you meet the requirements under INA § 245(i). Under normal circumstances, overstaying your visa will immediately disqualify you from adjusting status; however, being an immediate relative, e.g., the spouse, of a U.S. citizen will automatically waive that disqualification.

Exceptions to the Rule: Some Visas Still Prevent Adjustment

While many visa overstays can be forgiven when you marry a U.S. citizen, certain visa categories make adjustment of status significantly more difficult or even impossible. For instance, those who entered the U.S. on a C-1 or C-1/D visa or certain J-1 exchange visas with a two-year foreign residency requirement will face significant obstacles, even if they marry a U.S. citizen. In these cases, you may need to leave the country or pursue other waivers before you can apply for a green card.

Caution Against Fraudulent Marriages

This post is meant for legitimate couples who have married and the non-citizen spouse happens to have overstayed their visa. Getting married simply to cure the visa overstay is considered immigration fraud and comes with hefty consequences, including the necessity for a fraud waiver and potentially deportation and removal from the United States.

Conclusion

While overstaying your visa does come with its own complications, marrying your U.S. citizen partner and becoming an immediate relative does provide relief when it comes to being eligible for Adjustment of Status. However, there are nuances to the process, especially if you entered on certain visa types that restrict the ability to adjust your status. Consulting with an experienced immigration attorney can help you navigate your options and avoid any potential pitfalls.

How We Can Help

At Carbone Law, we are experienced in assisting clients with Adjustment of Status applications. We can help you assess your situation and guide you through any issues related to the adjustment process. If you are interested in filing for Adjustment of Status, please do not hesitate to give us a call at (212) 547-8857 or schedule a consultation online and we'd be happy to work with you. Our experienced immigration attorneys are here to provide the advice you need. Contact us today and take the next step towards applying for your green card!

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.