Can you get a green card through marriage if you overstayed a visa? If you overstay a visa, you may be able to remain in the U.S. through marriage to a U.S. citizen. However, you must prove that your marriage is valid and that your reason for marriage isn’t simply to avoid the repercussions of an overstayed visa.
For help obtaining a marriage visa or taking steps to avoid issues related to an overstayed visa, call 708-694-3859 to consult the Chicago immigration attorneys at Khalaf & Abuzir, LLC.
The Consequences of Overstaying a Visa
According to recent statistics, visa overstays comprise about 40% of all illegal entries in the U.S. If you overstay your visa, you could face serious penalties, such as:
- Reentry Bans: Visa overstays render green card holders an unlawful presence in the U.S., as they no longer have a valid document approving their entry into the country. As such, being an unlawful presence could lead to reentry bans, with the ban being longer depending on the length of the overstay—an overstay of 180 days or longer could result in a three-year ban, while you might face a reentry ban of 10 years if your overstay lasts for more than one year.
- Ineligibility for Some Visas: You may also be unable to apply for certain visas in the future because of your overstay, with a marriage visa being one exception.
- Deportation and Removal: In addition, individuals who overstay their visas could face deportation and removal proceedings, forcing them to return to their country of origin.
To avoid these repercussions, there are steps you can take, one of which might be to apply for a marriage visa if you are in a legitimate relationship with someone you would like to marry.
How Marriage Impacts Green Card Eligibility After a Visa Overstay
If you marry someone while on an overstayed visa, you could benefit in a couple of key ways. For example, applying for an adjustment of status after a visa overstay through marriage could enable you to remain in the U.S. as you await the approval of your marriage visa, as the government will no longer consider you an unlawful presence. Additionally, because the marriage visa category does not have an annual cap, it often doesn’t take as long to go through the application process.
Adjustment of Status vs. Consular Processing for Overstayed Visa Cases
Depending on your location at the time of applying for your marriage visa, you will either apply via an adjustment of status or consular processing.
Adjustment of status involves applying for a visa while currently in the U.S. Conversely, if you are abroad in your country of origin at the time of applying, you would apply through a nearby American embassy or consulate.
If you apply for adjustment of status while in the U.S., you may still be able to live and work in the U.S. while undergoing the visa application process. However, you may be ineligible for this process if you have a history of certain criminal violations. You might also wonder: Can you travel while an immigration case is pending? Generally, you may have permission to travel as you await a decision from U.S. Citizenship and Immigration Services (USCIS).
Although consular processing is often faster than adjustment of status, it tends to come with steeper fees and requires more documentation.
How to Apply for a Marriage-Based Green Card
To apply for a marriage green card, start by taking the following steps:
1. Establishing the Bona Fide Marriage
The first step involves proving that your marriage is bona fide (real) and that you intend to stay married to your partner after obtaining your visa. To do so, your spouse must be a U.S. citizen or green card holder who can complete Form I-130, Petition for Alien Relative, along with supporting documentation like marriage certificates, bank statements, and joint leases that prove how the relationship is genuine.
2. Applying for the Marriage Green Card
The next step is for the foreign spouse to apply for a marriage green card, either within the U.S. or abroad. If in the U.S., applicants will need to file Form I-485, Adjustment of Status, which you can often do with Form I-130 at the same time. If abroad, you would apply through a nearby embassy or consulate and the National Visa Center (NVC).
3. Attending an Interview and Awaiting a Decision
You would then attend an interview with an immigration official, who will ask questions to confirm eligibility and that your marriage is bona fide. Following this interview, you would wait for USCIS to make a decision regarding your green card. You will receive your green card by mail within two to three weeks if approved.
Why You Should Speak With an Immigration Lawyer Before Filing
To avoid an overstay or immigration issue, it’s important to consult with a fiancé visa lawyer in Chicago to discuss your options.
An attorney with experience in immigration law will help you determine whether a marriage green card is right for you based on your current situation. A good lawyer could also answer questions, such as “What is temporary protected status?” and “Why is the USCIS taking so long to process my application?”
Ultimately, consulting an immigration lawyer for an overstayed visa can help you identify the best opportunity to explore alternative routes to staying in the U.S., such as a marriage-based green card or another form of protection.
To learn about what steps you can take to overcome the challenge of an overstayed visa, contact the team at Khalaf & Abuzir, LLC to consult with one of our Chicago immigration attorneys.
