Can You Get a Green Card if You Overstay Your Visa? (2023)

In a Nutshell

Many immigrants without lawful status first came into the United States with valid visas and stayed past the end of their approved visit. Under U.S. immigration law, there are consequences for people who end up overstaying their visa, including a bar from re-entering the country. If you apply for a green card after a visa overstay, a re-entry bar will significantly lengthen your application process or prevent you from applying altogether. You may be able to apply for a waiver that legally forgives your overstay so you can apply for a green card. In this article, we explain how to know if you’ve overstayed your visa, whether or not a pathway to a green card is available to you, and how to use waivers of inadmissibility for unlawful presence.

Can You Get a Green Card if You Overstay Your Visa? (1)Can You Get a Green Card if You Overstay Your Visa? (2)

(Video) Can You Get a Green Card if You Overstay Your Visa?

Written by Jonathan Petts.
Written May 24, 2022

How Do I Know if I Have Overstayed My U.S. Visa?

You have overstayed your visa if you have remained in the United States past your approved duration of stay. Your I-94 travel record has your approved duration of stay. Every foreign national who visits the United States has a Form I-94 to their name that details their arrival date and the date they’re expected to leave. This date is often different from the visa expiry date on the visa stamp you received in your passport.

The expiration date on your visa stamp indicates how long you can use that visa to enter the U.S. By contrast, the authorized stay date on your I-94 record specifies how long you can stay in the United States after you’ve entered. So your visa could be valid for many years, but your authorized stay for any trip could be for only a couple of weeks or months.

(Video) Get a Green Card if You Overstay Your Visa - Best Options for Immigrants Without Leaving US | USCIS

You can access your I-94 record on the U.S. Customs and Border Patrol (CBP) website if you don’t have a paper copy of it. You will be able to see your authorized stay information when you enter your passport number and other personal information.

What Is Unlawful Presence?

If you realize after looking up your I-94 arrival and departure record that you have been in the United States past your authorized stay date, you have begun to accrue unlawful presence. Unlawful presence refers to the amount of time you spend in the United States without lawful immigration status. Unlawful presence begins the day after your authorized period of stay expires.

If you came into the United States under the Visa Waiver Program (VWP), unlawful presence starts 90 days after your first day in the country. If you came into the United States on a nonimmigrant visa, unlawful presence begins 180 days after the date on your I-94 record.

There are consequences for accruing unlawful presence based on the length of your unlawful presence, including a 3-year bar or a 10-year bar from re-entering the United States after you leave. You also risk deportation when you are without lawful immigration status in the United States for any extended period.

What Is Illegal Entry?

You can also be unlawfully present in the United States if you entered illegally. Illegal entry means that you came into the United States without official authorization from the U.S. government, in the form of a valid visa or visa waiver, or that you were not inspected by border patrol officials when you entered.

(Video) Overstayed your visa and married with a Green Card holder?

Can I Apply for a Green Card if I Entered the U.S. Illegally?

It is complicated to get a green card if you entered the United States illegally. Generally, if you entered the United States illegally, you can only apply for a green card from your home country through a process called consular processing.

You can’t apply for a green card from the United States, called an adjustment of status. Sometimes, you cannot get a green card at all. For example, someone who enters the United States illegally multiple times will be deported and permanently barred from entering the country again. If you’re permanently barred, you can’t apply for a green card, U.S. citizenship, or other immigration benefits.

If you enter illegally and stay for less than 180 days, you will not face a re-entry bar when you go home to apply for a green card. But if you entered legally and stayed for more than 180 days, then you will face either a 3-year or 10-year bar when you go home to submit your green card application. If you’re a Deferred Action for Childhood Arrivals (DACA) recipient who applied for DACA more than 180 days after you turned 18 and never had Advance Parole, you’ll face a 3-year or 10-year bar.

What Are Bars to Entry?

In U.S. immigration law, bars of entry are penalties for people who have spent a period of unlawful presence in the United States. There are three types of re-entry bars: 3 years, 10 years, and permanent.

If you spend between 180 and 365 days of unlawful presence in the United States, you’ll face a 3-year bar. If you have one year or more of unlawful presence, you’ll receive a 10-year bar. If you have repeatedly entered the United States unlawfully, you will be permanently barred from returning to the country.

(Video) If You Overstay Your Visa Can You Still Get a Green Card?

Can I Apply for a Green Card if I Overstayed my Visa?

Yes, you can apply for a green card if you overstayed a visa, but only if you meet very specific requirements.

Typically, you can’t apply for a green card from the United States if you don’t have valid (unexpired) immigration status. U.S. immigration law makes an exception for the immediate relatives of U.S. citizens, that is, the parents, children, and spouse of a U.S. citizen. If you’re an immediate relative of a U.S. citizen who entered legally (through a nonimmigrant visa, for example), you can apply for your green card by filing Form I-485, even if you overstayed a visa.

This exception does not apply if you’re an immediate relative to a U.S. permanent resident (green card holder). You will have to apply for a green card from your home country. If you’re subject to a re-entry bar, you’ll have to wait it out before you can return to the U.S. But you may also request that the U.S. government pardon your unlawful presence with a waiver of inadmissibility. More on this is below.

Can I Travel Outside the U.S. if I Overstayed My Visa?

If you do not have a pending green card application, you will not be able to enter the U.S. when you return. But if you have a pending green card application, you can travel out of the United States with Advance Parole. Advance Parole is a travel document that makes it possible for you to travel abroad without abandoning your green card application. If you entered the United States legally, overstayed your visa, and your green card sponsor is a U.S. citizen, then you can apply for Advance Parole. You’ll be able to go abroad and return to the United States without facing re-entry bars.

It would be best if you were very cautious in doing this though, as this exception for immediate relatives of U.S. citizens may change at any time and is not applied in the same way throughout the United States. The policy may change suddenly when you’re abroad, and you may find yourself unable to get back to the United States to finish your green card application. For this reason, if you overstayed a visa, it’s a wise idea to hold off on traveling until you receive your green card.

(Video) Obtaining a Green Card after Overstaying on a Visa

What Are Waivers of Inadmissibility?

A waiver of inadmissibility is a common name for Form I-601, Application for Waiver of Grounds of Inadmissibility. This form is a legal request you can make to the U.S. government to pardon the re-entry bar you’re facing for unlawful presence. To apply for the waiver, you’ll have to prove to USCIS that your U.S. citizen or lawful permanent resident relative will experience “extreme hardship” if you have to wait out your re-entry bar. For example, if you’re a parent who overstayed a visa, the burden of childcare could be tough on the parent you’re leaving behind in the United States.

Conclusion

Getting a green card after overstaying a visa can be complicated, but help is available. If you are eligible, our free web app will walk you through the green card or waiver of inadmissibility process and help you prepare and file your application with the U.S. government. If our app isn’t a good fit, we may be able to refer you to an experienced immigration attorney to help. Click "Get Started" to see how we can help make your American dream come true!

FAQs

Can I apply for green card if I overstayed my visa? ›

If you overstay your visa for less than 180 days, you may leave the US and apply for a green card through consular processing. If your overstay is more than 180 days, your only option is for your spouse to file USCIS Form N-400 to become a US citizen.

Can visa overstay be forgiven? ›

What is visa overstay forgiveness? If you're a visa holder and you remain in the United States past the “admit until date” listed on your Form I-94 (also called the “Arrival/Departure Record”), you are overstaying your visa. If this happens, you can get visa overstay forgiveness by applying for a waiver.

What is my current immigration status if I overstayed my visa? ›

If you overstay your visa, you start to accrue unlawful presence. Unlawful presence means that you are in the United States but you don't have any immigration status. This is sometimes called being in the United States “illegally” or being “undocumented.”

How can I fix an overstayed US visa? ›

How do I fix an overstayed visa? The best course of action is to discuss your case with an immigration lawyer. They will be able to advise you whether you should return to your home country, apply for an adjustment of status within the United States, or another pathway to residency.

How do I ask for forgiveness from immigration? ›

If you already have valid entry documents but require an inadmissibility waiver, you can file Form I-192 with a designated port of U.S. entry, in advance of your travel. Applications can also be filed electronically. Contact an immigration attorney if you believe your case falls into this scenario.

What is the fastest way to get green card? ›

If you're a close relative to a U.S. citizen or a green card holder, they can petition for you to obtain legal permanent residency. This option is the fastest and most popular path to getting a green card.

How do I remove overstay? ›

Personal Sponsorship (Family)
  1. Petition letter from Sponsor.
  2. Passport and visa copy of the Sponsor.
  3. Sponsor Salary certificate/ Labor contract/ Memorandum.
  4. Any documents that support the cause of overstaying must also be submitted.
Sep 12, 2021

What is a valid reason for overstaying visa? ›

What are the valid reasons for overstaying? Valid reasons for overstaying include where you have: Applied for a new visa or another immigration status such as Indefinite Leave to Remain (ILR) Applied to extend your visa.

Is there a 10 year ban for overstaying visa? ›

Overstay of More Than 180 Days

If you accrue unlawful presence of more than 365 continuous days, then leave prior to any removal or other proceedings being instituted against you, you will be subsequently inadmissible and barred from returning to the United States for ten years.

Can I return to USA if I overstayed my visa? ›

If you overstay by 180 days or more (but less than one year), after you depart the U.S. you will be barred from reentering for three years. If you overstay by one year or more, after you depart the U.S., you will be barred from reentering the U.S. for ten years.

Can I marry a US citizen after overstay visa? ›

Immigrants who overstay their visa for more than a year face a ten-year bar once they leave the U.S., but they can still apply to adjust their status if they're married to an American citizen. However, they risk the same struggles that they may experience with a visa stay of 180 days to a year.

Is overstaying visa a crime? ›

“[U]under current law, illegal entry into the United States makes an alien subject to a Federal criminal misdemeanor with a maximum penalty of 6 months in prison. However, unlawful presence itself, such as by overstaying a visa, is not a criminal offense, but only a civil ground of inadmissibility…

How can I stay in the US legally? ›

Lawful Permanent Residents

Non-U.S. citizens can permanently live and work in the U.S. by applying to be a lawful permanent resident and obtaining a Green Card. Lawful permanent residents are entitled to limited rights and benefits as compared to U.S. citizens.

How much does an immigration forgiveness cost? ›

If you need help downloading and printing forms, read our instructions. The filing location depends on the immigration benefit you are seeking. To view a complete list of addresses, go to our Direct Filing Addresses page. $930.

Can immigration forgive you? ›

A request for forgiveness is a procedure in which we ask the government to forgive us for any violation of immigration laws that we have committed in order to obtain residency or maintain residency. For example: A person that enters the United States undocumented and stays for 10 years.

Can I go back to US if I was deported? ›

Once you have been deported, the United States government will bar you from returning for five, ten, or 20 years, or even permanently. Generally speaking, most deportees carry a 10-year ban. The exact length of time depends on the facts and circumstances surrounding your deportation.

What is the longest wait for a green card? ›

It takes 7 to 33 months to process a Green Card application.

The Green Card processing time depends on the type of Green Card you are applying for, the location of the processing office and other factors. Family Preference Green Cards processing takes from 1 to 10 years depending on the wait time and yearly caps.

What is the shortest time to get a green card? ›

Posted by Frank Gogol in Immigrants | Updated on November 15, 2022. At a Glance: The average processing time for a marriage-based green card is 10-13 months. A family-based Green Card can take 7-33 months depending on the office and type of visa you are applying for. Are you currently applying for a Green Card?

Can I leave US after overstay? ›

Leaving the US After Overstaying Your Visa

If you have overstayed your stay for less than 180 days, you will not trigger any bars to re-entry. Although when/if you try to re-enter the United States the border officer will be able to see that you overstayed your permitted time on your previous stay and could deny entry.

Can I pay my overstay at the airport? ›

You can settle your overstaying fines at any of the entry ports (airport, land border, sea ports), immigration offices, Amer offices and typing centres.

How much is an overstay? ›

After your UAE visa has expired and your given grace period is over, you will be required to pay your overstay fine as per the number of days accrued. The cost of the overstay fine is AED 50 per day.

How long can you stay in the US with an expired visa? ›

You should still be able to return to the U.S. if you stay in the U.S. for less than 180 days after your visa expires, and you leave before formal removal proceedings begin. However, when you do return to the U.S., the border officials will be able to see that you previously overstayed your visa.

How long do you have to stay married to become a U.S. citizen? ›

The spouse of a U.S. citizen residing in the United States must have been living in marital union with his or her citizen spouse for at least 3 years immediately preceding the time of filing the naturalization application.

Can marriage stop deportation in USA? ›

The short answer is no. Marriage alone won't stop deportation or prevent you from being deported in the future. But, marriage to a US citizen can make it easier to establish your legal status in the United States.

Does marrying a U.S. citizen give you permanent residency? ›

Once you marry, your spouse can apply for permanent residence and remain in the United States while we process the application. If you choose this method, file a Form I-129F, Petition for Alien Fiancé(e). Filing instructions and forms are available on our Web site at www. uscis.

How much is the fine for visa overstay? ›

Those who overstay their visa expiration could further be blacklisted and banned from entering the UAE or any GCC if they do not exit after their visas expire. The new rules for visa charges and fines follow sweeping visa changes last week. Moreover, they could face a fine starting at AED5,000.

Can I apply for adjustment of status if I overstayed? ›

As mentioned, those who entered illegally or those who overstayed and subsequently departed the United States, are not eligible to file adjustment of status (green card) within the United States.

Can I apply for a green card if I was deported? ›

You're not eligible to apply for a green card in the U.S. if you've previously been ordered deported.

Can you get a green card after being deported? ›

Someone who has been removed (deported) from the United States cannot apply for a new immigrant visa, nonimmigrant visa, adjustment of status, or other admission to the United States without facing certain legal restrictions.

What is the punishment for overstaying a visa? ›

Visa overstays may be barred from returning to the U.S. for ten years or three years depending on the period of overstay or “unlawful presence”. Visa overstays may be restricted from applying for Extension of Stay or Change of Status. Visa overstays will have their existing visa automatically revoked or cancelled.

Can I get deported if I'm married to a US citizen? ›

Can you be deported if you are married to an American citizen? The answer is yes, you can. About 10% of all the people who get deported from the U.S. every year are lawful permanent residents. You can actually be deported for several reasons.

Can marrying a US citizen stop deportation? ›

The short answer is no. Marriage alone won't stop deportation or prevent you from being deported in the future. But, marriage to a US citizen can make it easier to establish your legal status in the United States.

How long does a deportation stay on your record? ›

Waiting Time for Application for Reentry

Once you have been deported, the United States government will bar you from returning for five, ten, or 20 years, or even permanently. Generally speaking, most deportees carry a 10-year ban.

Can I travel in the US if I overstayed? ›

Possibilities for Future Travel to the U.S. Even After a Brief VWP Overstay. The good news? You will not be subject to a time bar on reentering the U.S., so long as your overstay did not last more than 180 days.

How long can you stay in US without a visa? ›

The Visa Waiver Program (VWP) enables most citizens or nationals of participating countries* to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa.

Can you be deported if you have a child born in the US? ›

Could I Be Deported If I Have A Child Born In The U.S? The short answer is yes, it's routine procedure for illegal aliens to be deported from the United States even if they have a child or several children who were born in the United States.

How long do immigrants have to wait to get a green card? ›

If your spouse is a green card holder and you currently live in the United States, then you will wait about 14-26 months to receive your green card. If your spouse is a green card holder and you currently live outside the United States, then you will wait about 18.5-32.5 months to receive your green card.

What is the 10-year law immigration? ›

The 10-year unlawful presence ground of inadmissibility applies whether you leave before, during, or after DHS initiated removal proceedings. This statutory 10-year period starts when you depart or are removed from the United States.

Videos

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3. Overstayed Visa. Why This #1 Option For A Green Card Is So Tricky.
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