Home > Applying for a Green Card After a Visa Overstay in the U.S.

Applying for a Green Card After a Visa Overstay in the U.S.

September 13th, 2023

If you are still in the United States after the expiration of the electronic I-94 issued by CBP (Customs and Border Protection Agency) upon your entry, you will have overstayed your visa status and you may be considered as unlawfully present in the U.S.  This can raise significant challenges when applying for a Green Card.

The U.S. government does not offer many options for permanent residency after a visa overstay, and depending on the duration of the over-stay, it could prevent an individual from being eligible to apply for a Green Card at all. In most cases, visa holders who have overstayed will need to leave the U.S. and apply for a Green Card at a U.S. Consulate.  Of course, this limitation does not apply to all categories of Legal Permanent Residency (Green Card Status).  For example, beneficiaries of an “immediate relative” I-30 petition, which are spouses of a U.S. citizen, single children of a U.S. citizen who are under 21 years old, and the parents of U.S. citizens who are over 21 years old; all may obtain Green Cards in the U.S., even if they have overstayed their visa status.

There are several other categories of individuals who are exempt from this unlawful presence restriction, which include asylees, U visa holders (victims of certain crimes), SIJs (Special Immigrant Juveniles), T visa holders (Victims of human trafficking), individuals applying for VAWA (Violence Against Women Act) benefits or those who have a VAWA petition that was granted, as well as several others.

For a case consultation with our experienced Green Card immigration lawyers, contact the FitzGerald Law Company today at (617) 303-2600.

Unlawful Presence and Inadmissibility after a Visa Overstay

Unlawful presence is the period of time when you are in the United States without being admitted or paroled in addition to any time when you do not have specific authorization to stay or when you have overstayed your authorization.  If you have been in the United States unlawfully for more than 180 days but less than a year during a single stay, you will generally be found inadmissible, unless an exception applies, if you attempt to re-enter within 3 years.  Similarly, if you have been in the United States unlawfully for one year or more during a single stay, you will generally be found inadmissible if you attempt to re-enter within 10 years. If you have accrued more than one year of unlawful presence during one or more stays in the United States and try to re-enter without being admitted or paroled, you may be permanently barred from entering the country, although some exceptions may apply in certain cases.

The Three-Year Unlawful Presence Ground of Inadmissibility

If you are not a lawful permanent resident of the United States and you have accrued more than 180 days, but less than one year of unlawful presence during a single stay in the U.S. on or after April 1, 1997, then you may be “inadmissible” which means you are ineligible for a change of status in the U.S. or to obtain legal permanent residency, or admission to the U.S. until you have been outside the U.S. for 3 years, unless an exception applies.

The 10-Year Unlawful Presence Ground of Inadmissibility

If you are not a lawful permanent resident of the United States and you have accrued more than one year of unlawful presence, during a single stay in the U.S. on or after April 1, 1997, then you may be “inadmissible” which means you are ineligible for a change of status in the U.S. or to obtain legal permanent residency, or admission to the U.S. until you have been outside the U.S. for 10 years, unless an exception applies.

If an Unlawful Presence Ground of Inadmissibility Applies to You

Whether an unlawful presence ground of inadmissibility applies to you depends on the immigration benefit you are seeking and whether the law may exempt you from the ground of inadmissibility.

If you are inadmissible due to an “unlawful presence” ground of inadmissibility, you generally cannot obtain a visa from the U.S. Department of State, enter the United States at a port of entry, or obtain an immigration benefit such as adjustment of status (Green Card), or change the status of a non-immigrant visa in the United States, without first obtaining a waiver of inadmissibility.

There are several forms of waivers and relief that can be helpful. These include Form I-192, a nonimmigrant visa waiver application, Form I-601 for a waiver of grounds of inadmissibility which can be filed with USCIS, an Immigration Court, or with a USCIS office at a U.S. Consulate, and Form I-601A for a provisional unlawful presence waiver, which must be filed in the U.S.

Applying for a Green Card Through Family After a Visa Overstay

One of the only ways to apply for a Green Card after a visa overstay is through a family member who is a U.S. citizen, this includes spouses and in certain situations parents or children.  You may qualify for residency after overstaying your visa if your parent is a U.S. citizen and you are single and under 21 years old.

You may also qualify if you have a child who is a citizen and who is over 21 years old.  It is important to note a stepchild qualifies as your child for immigration purposes.

Waivers and Extreme Hardship

Most waivers, including waivers for over-staying a visa, require that the individual have a spouse or parent with Legal Permanent Residency status or U.S. citizenship, who would suffer an extreme hardship if the waiver was not approved, and the individual could not live in the United States.

This hardship must be more than the normal hardship that results from a deportation, like the separation from family, lower standard of living, lower wages, and educational services in a different language.  The hardship should be based on a physical health condition, a mental health issue, or educational disabilities, and should not be solely based on the individual’s immigration status.

Our Green Card Immigration Lawyers Can Help

Call FitzGerald Law Company today at (617) 303-2600 so our Green Card immigration attorneys can give you a legal assessment of you case.