Visa Overstays: Breaking Immigration Law?

The topic of immigration is a highly debated issue, with many arguing that immigrants who overstay their visas are breaking the law and should be treated differently from those who enter a country illegally. In the United States, the Department of Homeland Security (DHS) reported that over 850,000 foreign visitors overstayed their authorized stay in 2022, with a total overstay rate of 3.64%. This has raised concerns about the country's ability to address illegal immigration effectively. However, it is important to note that overstaying a visa is considered an administrative matter, and deportation is the only consequence, which is not viewed as a punishment. On the other hand, illegal entry is considered a crime and can result in jail time. The distinction between these two types of immigration violations has led to discussions about the effectiveness of security measures and the potential risks associated with each group. Some argue that those who cross borders illegally pose a greater danger, while others emphasize the need to address both issues comprehensively.

Visa overstays and marriage: pathways to lawful status

For immigrants, marriage to a U.S. citizen can offer a pathway to lawful status, even if their initial visa has expired. However, there are complex rules, eligibility requirements, and consequences associated with visa overstays and marriage. This article will discuss the implications of visa overstays, the process of adjusting status through marriage, and the importance of seeking legal advice.

Visa Overstays: Implications and Consequences

A visa overstay occurs when a foreign national enters the U.S. legally but remains beyond the authorized period. Every visa has an expiration date, and overstaying is a violation of U.S. immigration law. The consequences of overstaying depend on the duration of the overstay:

• Overstay of less than 180 days: No automatic penalties or bans for leaving the country, but the violation remains on record.
• Overstay between 180 days and one year: A 3-year ban on re-entry to the U.S. after departure.
• Overstay of one year or more: A 10-year ban on re-entry after leaving the country.

Marriage to a U.S. Citizen: Adjustment of Status

Marriage to a U.S. citizen is one of the most viable paths to lawful status for immigrants who have overstayed their visas. U.S. immigration law allows these immigrants to adjust their status and apply for a Green Card without leaving the country, potentially avoiding re-entry bans. This process is known as "Adjustment of Status."

To be eligible for Adjustment of Status, an immigrant must generally meet the following criteria:

• Entered the U.S. legally: The immigrant must have initially entered the U.S. with a valid visa or other entry documentation.
• Current marriage to a U.S. citizen: The marriage must be legally valid, and proof of a bona fide relationship may be required.
• No prior removal orders or criminal issues: Disqualifying criminal offenses or prior removal orders may complicate the process, but waivers or remedies may be available.

If eligible, the immigrant can proceed with filing relevant forms, including Form I-130 (Petition for Alien Relative) and Form I-485 (Application to Register Permanent Residence or Adjust Status).

Marriage to a U.S. Permanent Resident

If an immigrant's spouse is a U.S. permanent resident (Green Card holder), the path to legal status can be more complicated. Marriage to a Green Card holder falls under the "family preference" category, which is subject to annual visa limits. This may result in a waiting period before status adjustment.

Additionally, if an immigrant has overstayed their visa, a waiver of inadmissibility may be required to adjust their status. Obtaining this waiver can be complex, as it typically involves proving that the U.S. citizen or permanent resident spouse would suffer extreme hardship if the waiver were denied.

Key Documents and Considerations

The adjustment of status process requires comprehensive documentation, including:

• Proof of legal entry: Visa, I-94 arrival/departure record, or other entry documentation.
• Marriage certificate: Proof of marriage to a U.S. citizen or permanent resident.
• Proof of bona fide marriage: Evidence that the marriage is genuine, such as joint bank accounts, lease agreements, photos, and affidavits from friends or family.
• Medical examination: An authorized medical exam is part of the adjustment of status application.
• Proof of identity: Copies of passport, birth certificate, and other identification.

Special Considerations and Legal Advice

For immigrants with complex immigration histories, including prior removals or criminal records, additional steps may be necessary, such as waivers of inadmissibility or appearing before an immigration judge.

Navigating U.S. immigration law is complex, and visa overstays and marriage add further layers of complexity. Working with an experienced immigration attorney is crucial to understanding eligibility, preparing documentation, and handling any challenges that may arise. An immigration attorney can provide guidance on eligibility, application preparation, handling complications, and representation in hearings or removal proceedings.

Consequences of visa overstays

Overstaying a visa in the US can have serious legal and immigration consequences. US immigration law strictly enforces visa time limits, and there are various penalties for those who remain in the country beyond their authorised period of stay. Here are some of the consequences of overstaying a visa:

Unlawful Presence and Bans on Re-Entry

Overstaying a visa results in "unlawful presence", which can trigger re-entry bans. The length of the ban depends on the length of the overstay:

• Overstay of 180 days to 1 year: 3-year re-entry ban
• Overstay of more than 1 year: 10-year re-entry ban

Deportation and Removal Proceedings

Overstaying a visa can lead to deportation, especially if discovered during routine checks or when applying for immigration benefits. This can result in a formal removal order.

Loss of Immigration Benefits

While overstaying, individuals lose vital benefits, including:

• Employment authorisation
• Access to public benefits
• Eligibility to renew a driver's license

Challenges Adjusting Immigration Status

Overstaying a visa makes it more difficult to adjust immigration status to obtain a green card, student visa, or work visa. Although some exceptions exist, they are limited.

Negative Impact on Future Applications

A history of overstaying can lead to visa denials and stricter scrutiny in future immigration processes. Violations make individuals less likely to qualify for visas or citizenship in the future.

Visa Revocation or Cancellation

When a visa holder overstays their authorised period, their visa is automatically revoked or cancelled.

Inability to Obtain a New Visa

Visa overstayers are generally unable to obtain a new visa except in their country of nationality.

Bar to Change or Extend Status

Individuals who overstay their visa are generally unable to extend their stay or change their status to another nonimmigrant status. They may also be barred from adjusting their status from nonimmigrant to immigrant.

Criminal and Civil Penalties

Foreign nationals who receive a final order of removal from the US may face criminal and civil penalties for their continued unlawful presence. They may be fined or imprisoned for up to 4 years if they fail to depart within 90 days of receiving the order or engage in certain prohibited actions.

Adjustment of status for spouses of US citizens

The process of adjusting status allows certain non-US citizens within the United States to apply for lawful permanent residency, also known as a green card, without having to leave the country. This is typically used by individuals who entered the US on a temporary visa, such as a student or work visa, and wish to become permanent residents.

The alternative to this process is consular processing, which involves applying for a green card from outside the United States. In this case, the individual's green card will be processed by their nearest US consulate or embassy, and they will remain outside the United States until their green card is approved.

Requirements for Adjustment of Status

To be eligible for adjustment of status, an individual must have been inspected and admitted or paroled into the United States, must be eligible to receive an immigrant visa, and must not be inadmissible to the United States.

Spouse Eligibility Requirements

For a foreign national to be eligible for adjustment of status through marriage, they must meet the following requirements:

• Be physically present in the US; this includes both current and expired non-immigrant status.
• Have most recently entered the US through legal means. If the individual is in the US on an overstayed visa, they may still qualify as long as they initially entered with a valid visa or visa waiver.
• Be deemed admissible to the United States – potentially disqualifying factors include having a criminal history.

Adjustment of Status Process

The first step in adjusting status is to file a Form I-130, Petition for Alien Relative, and then a Form I-485, Application to Register Permanent Residence or Adjust Status, with the US Citizenship and Immigration Services (USCIS). This application must be accompanied by supporting documentation, including evidence that the individual is eligible for an immigrant visa and is not inadmissible to the United States.

Once the application has been filed, USCIS will review the case to determine eligibility. If the individual is found to be ineligible, their application may be denied or referred to Immigration Court for removal proceedings. If they are found to be eligible, USCIS will schedule an interview at a local office.

At the interview, a USCIS officer will ask questions about the application and the individual's eligibility. The officer may also inquire about the applicant's background and personal history. It is important to be honest and forthcoming during the interview, as any misrepresentations or false statements could result in the application being denied or referred for removal proceedings.

After the interview, the USCIS officer will make a decision on the case. If the application is approved, the individual will be issued a green card and become a lawful permanent resident of the United States. If it is denied, they may appeal the decision or file a motion to reopen or reconsider their case.

Application Cost

To complete the adjustment of status process, several fees must be paid, including any costs related to the initial petition. To adjust status through marriage, the Form I-130 petition typically costs $535 to submit, and the Form I-485 costs $1,140 plus an $85 biometrics charge. However, if the individual is submitting Form I-485 as a refugee, the filing and biometrics costs are waived.

Timeline

The timeline for adjustment of status through marriage can vary depending on factors such as the type of application and the individual's circumstances. If the US-based spouse is a green card holder, the process generally takes at least two years. If the spouse is a US citizen, the process is usually completed in about a year. The timeline also depends on the location of the applicant, as processing times can vary between different USCIS offices.

In conclusion, adjustment of status is a process that allows certain non-US citizens, including spouses of US citizens, to apply for lawful permanent residency from within the United States. The process involves submitting various forms and documentation to USCIS and can take several months or years, depending on the individual's circumstances. Spouses of US citizens who meet the eligibility requirements and provide the necessary documentation can successfully adjust their status and obtain a green card.

Adjustment of status for spouses of US permanent residents

If you are a foreign national married to a US citizen or lawful permanent resident, your marital relationship may qualify you for lawful permanent resident status through an immigrant visa, also known as a green card. The process to obtain this status is called adjustment of status.

To be eligible for a marriage-based green card, your marriage must be legally valid in the place you were married. For example, marriages involving minors or those closely related by blood are prohibited in some US states. Your marriage must also be "bona fide", meaning it is not a sham to obtain a US green card.

To apply for an adjustment of status, you must fill out USCIS Form I-485, along with supporting forms and documents. This form is issued by the US Citizenship and Immigration Services (USCIS).

The following forms and documents are required to adjust your status:

• Form I-130, Petition for Alien Relative
• Form I-485, Application to Register Permanent Residence or Adjust Status
• Form I-693, Report of Medical Examination and Vaccination Record
• Form I-864, Affidavit of Support
• Form I-765, Application for Employment Authorization (optional)
• Form I-131, Application for Travel Document (optional)

Additionally, you will be required to submit several types of records to support the information detailed in your application, including:

• Pictures of the couple together and with family and friends
• Proof of combined assets, such as joint bank account statements or credit card bills
• Copies of mail sent to the couple's joint residence
• Proof that both partners have named each other as beneficiaries in life insurance policies
• Proof of joint health or car insurance coverage
• Two current passport-style photos of the applicant
• A copy of the applicant's government-issued photo ID and birth certificate
• Evidence that the applicant was checked by an immigration officer before last entering the US
• Documentation of the applicant's immigration category
• A copy of the certified marriage certificate and evidence of the termination of any prior marriages for either spouse
• Certified records of any criminal charges or convictions that the applicant has received

The exact records required depend on the unique circumstances of each case, and an attorney can help you determine what to include in your application.

Once you have submitted your application, the process typically takes at least two years if the US-based spouse is a green card holder, and about a year if the spouse is a US citizen. The timeline may vary based on your specific circumstances and where you apply from.

It is important to note that once your application has been submitted, you may not be able to leave the US until advance parole is available. If you need to leave the country before advance parole is issued, USCIS may consider your green card application withdrawn or denied.

Overstaying a Visa

Overstaying a visa is generally considered a violation of US immigration law. However, if you have overstayed your visa and are married to a US citizen, you are still eligible to adjust your status and are not subject to the same penalties as other visa categories. This is because your marriage to a US citizen cancels out the overstay issue.

If you had instead chosen to apply through consular processing and had overstayed your visa by 180 days or more, you would be subject to inadmissibility for a certain period. This means you would not be allowed to return to the US for three years if your unlawful stay was over 180 days but less than a year, and for ten years if your unlawful stay was over a year.

Documentation required for adjustment of status

The following documentation is required for the adjustment of status:

• Form I-485, Application to Register Permanent Residence or Adjust Status.
• Form I-693, Report of Immigration Medical Examination and Vaccination Record.
• Evidence of an approved Form I-360 or a copy of the COM approval letter that also indicates approval of your Form DS-157 petition (if you are an Afghan parolee).
• Evidence of an approved Form I-130, Petition for Alien Relative (if you are applying for adjustment of status for parents).
• Evidence that you are eligible for an immigrant visa.
• Evidence that you are not inadmissible to the United States.
• Valid Form I-94, whether or not they are expired.
• Passports.
• Official travel documents.

The adjustment of status process allows certain non-U.S. citizens within the United States to apply for lawful permanent residency, also known as a green card, without having to leave the country. The process is typically used by individuals who entered the U.S. on a temporary visa, such as a student or work visa, and wish to become permanent residents.

Frequently asked questions