Usually, a person with a proper U.S. visa needs to apply for a green card before their visa expires. But in case they have overstayed, will they still be eligible to apply for a U.S. green card?
The answer is not as straightforward as other concepts in immigration law. This can be a very complicated case that requires looking into various aspects.
Determine If You Have Overstayed
First and foremost, a person needs to determine if they have indeed overstayed their visa. They can do this by going back to their I-94, which is available on cbp.gov. Once they type in their passport information, they will be shown their I-94.
This includes information about their most recent entry to the United States and their visa’s expiration date. If that date has passed, then the person has overstayed their visa.
There can be exceptions to this, however. Despite an expiration date that has already passed, a person has not overstayed in case of the following:
- The I-94 indicates “D/S”, which means Duration of Status
- The person has filed an extension of stay
Can You Get a Green Card if You Have Overstayed?
Assuming none of the exceptions exist and a person has overstayed their visa according to the expiration date on the I-94, the question of whether or not they can still apply for a green card would depend on which category they belong to: immediate relatives or non-immediate relatives with employment-based cases or non-immediate family members in the U.S.
A person with immediate relatives in the U.S. will still be able to get a green card despite being unlawfully present, i.e. overstaying their visa. The U.S. Congress has allowed this so that immediate relatives will be able to live with and stay with their U.S. citizen family members.
By law, immediate relatives only include:
- A spouse of a U.S. citizen
- A parent of a U.S. citizen
- A child under 21 of a U.S. citizen
These family members don’t need to do anything special for their case. Despite having overstayed their visas and being out of status, they will still be able to get a green card by virtue of their immediate relationship with a U.S. citizen — provided, of course, that everything else looks good in their application.
It’s a whole different story if the person who has overstayed is not an immediate relative. They may still be able to get their green cards, depending on their status.
For those who visited the U.S. for employment, it will be quite difficult for them to file for a green card in the U.S., especially if they have overstayed their visas. Often, they would be required to go out of the U.S. and process their application in a U.S. consulate abroad.
Non-Immediate Family Members in the U.S.
If a person who has overstayed their visa has a family member in the U.S. but is not an immediate relative, they will have to do additional work to receive a green card — but it’s possible.
There may be waivers available to them that will enable them to get a green card. One of these waivers says that the U.S. citizen’s relative will suffer extreme and unusual hardship if the person who has overstayed goes back to their home country.
If immigration approves the waiver, the applicant will need to go to a U.S. embassy abroad, show the waiver, prove the family relationship, and be able to come back to the U.S. with an immigrant visa. Down the road, an immigrant visa can lead to a green card.
Bar For Unlawful Presence
Something else that needs to be considered when overstaying a U.S. visa is the bar that may be imposed on someone who is accruing unlawful presence.
According to immigration law, a person who accrues 180 days or more of unlawful presence is subject to a 3-year bar. On the other hand, a person who accrues more than a year of unlawful presence gets a 10-year bar.
This means that if they leave the U.S., they will not be able to come back until their bar is served. There may be waivers to exempt a person from this bar, but it’s a complicated matter that needs to be discussed with an immigration lawyer.
Importance of Working With an Immigration Attorney
Overstaying a visa makes it difficult to get a green card, especially when it comes to those with non-immediate family members in the U.S. and those with employment-based cases. There are also a lot of things that need to be considered, from the bar for unlawful presence to the person’s eligibility for certain waivers.
It’s important to talk to and work with an immigration attorney who can make these laws understandable and find the best option for every unique case.