A visa does not always end a green card case when someone stays in the U.S. past the date allowed. For some spouses of U.S. citizens, an overstay may not prevent them from applying for permanent residence from inside the country. However, the answer can change based on how the person entered the U.S. and whether other immigration issues exist.
For example, someone who entered the U.S. with a valid tourist visa, married a U.S. citizen and stayed after the authorized period may still qualify for adjustment of status. U.S. Citizenship and Immigration Services (USCIS) generally does not apply certain status and unauthorized work bars to immediate relatives of U.S. citizens.
When an overstay may not block a green card
Marriage to a U.S. citizen can provide an important path to a green card. Spouses count as immediate relatives, so they do not have to wait for an immigrant visa number to become available.
However, the person generally must have entered the country through inspection and admission or parole. Several other factors can affect eligibility, including certain criminal offenses, fraud or misrepresentation and prior immigration violations.
Some common situations that may affect a spouse’s case include:
- Entering the U.S. without inspection
- Using false information to obtain a visa or admission
- Having certain criminal convictions
- Receiving a prior removal order
- Entering under the Visa Waiver Program and overstaying
Because each issue can affect a case differently, legal assistance can help identify potential problems before they affect an adjustment application.
What happens after the visa expires?
An expired period of stay does not automatically mean that a spouse must leave the U.S. to apply for a green card. For an eligible spouse of a U.S. citizen, filing for adjustment of status may allow the person to pursue permanent residence without first returning to the home country.
Still, leaving the U.S. after building up unlawful presence can create separate immigration problems. Depending on how long the person remained unlawfully, departure may trigger a three-year or 10-year bar on returning.
An overstay is not always the end
For a Daytona Beach spouse, an overstay may not close the door to a green card. The details of the entry, marriage, immigration history and any other violations can determine whether adjustment of status remains available.