All You Need to Know about Marrying a US Citizen after a Visa Overstay
The majority of immigrants think that they can get away with their illegal visa overstay process by marrying a US citizen. However, it's not easy to legalize your status by getting married to a US citizen in reality.
If you are a foreign citizen residing in the US beyond your permitted date of stay (specified in the I-94), you can potentially try to find a legitimate solution by entering into a real marriage with a US citizen. However, before you get into a marriage, you need to be aware of certain concerns.
The process of obtaining permanent resident status after marrying a US citizen is long and complicated. It’s essential to understand the process and take the necessary steps and not succumb to the common misconceptions. Here are some vital steps you need to consider when overstaying your visa and marrying a US citizen:
The Number of Days You have OverstayedThe number of days you have overstayed your visa duration directly impacts whether you can avail a legal status by marrying a US citizen. After visa expiry, if you get married to a US citizen, you can adjust your status by applying through Form I-485. It allows you to apply for a marriage green card with your partner's sponsorship without leaving the US. Following are some scenarios:
You can opt for I-485 adjustment status to obtain permanent resident status in the US if your partner is a lawful US citizen. However, you can also opt for consular processing and leave the US.
If you overstay for a period of more than 180 days, you can still apply for I-485 Adjustment of Status as long as you never leave the US after you overstay for more than 180 days. If you leave the US, you may be subject to a three-year bar for entry. This means you may not be able to obtain a green card for at least three-years. For an overstay of more than a year, you have to face a ten-year bar upon your departure from the US.
Even though it might be possible to get a waiver for a bar to re-enter, it is very difficult, and you have to establish proof for why you should be given the waiver.
Process of Applying for Green Card After Marrying a US CitizenThe right process for immigrants residing in the US to obtain a green card after bonafide marriage to a US citizen is through the I-485 Adjustment of Status. Generally, a foreign national may not be eligible to apply for Adjustment of Status after overstay beyond the specified I-94 date. However, a provision in law grants immediate relatives an exception to apply for Adjustment of Status after a visa overstay.
Not everyone can adjust their status. According to the rules, it’s mandatory for the spouse to have a legal entry to the US with a valid visa in the first place to qualify for Adjustment of Status. If you have entered the US without valid paperwork, you can not rightfully apply for status adjustment.
For instance, if you were on a student or H visa and met your spouse in the US, you can apply for adjustment of status and obtain permanent residency in the US. However, if you have visited the US with a tourist visa and get married to a US citizen within 90 days after arriving, it might complicate things and can result in losing the right to obtain a marriage-based green card. Therefore, do not marry a US citizen too early on a tourist visa if you plan to obtain a green card through adjustment of status application.
Adjustment of Status after Visa OverstayThe following are the steps and forms you need to file to adjust your status:
- Petition for Alien Relative – I-130
- Biographic Information – I-130A
- Adjust Status – I-485
- Affidavit of Support and Declaration of Self Sufficiency – I-864 and I-944
- Medical Examination – I-693
- Optional Application for Employment Authorization (I-765) or Travel Document (I-131)
Marriage FraudYou cannot easily trick the system by entering into a marriage to acquire a lawful resident status in the US. You have to prove that you have a bona fide marriage. There will be an interview process after you have filed a status adjustment for which you and your spouse need to appear with supporting documents. Here the authorities will validate you, and only then will your petition be approved.
Although you have the grounds to adjust the status after overstay by marrying a US citizen, it's essential to follow the right process and avoid mistakes. It's best to seek immigration lawyers' professional guidance along the way, to ease the overall application procedures and process your adjustment of status.
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