When it comes to immigration laws and processes, one of the most critical aspects to understand is the legal implications of overstaying your visa, especially while awaiting your Adjustment of Status (AOS) approval. This complex and nuanced process comes with various potential consequences that could significantly impact your legal future in the United States.

Immigration laws are not the simplest of laws to navigate. With inconsistent information online, it can be difficult to know whose advice to believe. Generally speaking, if someone has fallen out of status, they might be eligible to file for an Adjustment of Status if their spouse is a US citizen. Most people who file these cases properly and “stay under the radar” are often able to get positive outcomes in their cases.  

Ineligibility for Certain Immigration Benefits: 

One of the most immediate implications of overstaying your visa is the potential ineligibility for certain immigration benefits. This is a particularly crucial point to note, as it can have long-lasting effects on your immigration status and future in the U.S. For instance, if you overstay your visa by more than 180 days but less than one year and then voluntarily leave the U.S., you could find yourself barred from returning for three years. Similarly, if the overstay is for more than one year, the bar increases to ten years, further complicating your immigration status. Keep in mind that this bar is only triggered if you depart the U.S. 

In addition to potential ineligibility for certain immigration benefits, overstaying your visa can also result in removal proceedings being initiated against you if you somehow appear on USCIS’s radar by an event such as being arrested by the state or federal law enforcement authorities. This means that you could be deported from the United States and barred from re-entry for a certain period, ranging from three to ten years, depending on the duration of the overstay. This is a significant implication as it not only impacts your ability to stay in the U.S. but also affects your future ability to re-enter the country.

Another critical implication to be aware of is the potential ineligibility for consular processing. Consular processing is a procedure that allows individuals to apply for a visa while outside the United States. However, if you have overstayed your visa by a significant period of time (over 180 days or a year as mentioned above), you may find yourself ineligible for this process, further complicating your ability to obtain a U.S. visa.

If you are not an Adjustment of Status applicant, an overstay can also have a substantial impact on your ability to obtain future visas if you are . When applying for a visa, you will be required to disclose any previous overstays, which can be a negative factor in the decision-making process. This can affect your ability to obtain a visa in the future, as immigration officials may view the overstay as a violation of U.S. immigration laws.

If you find yourself in a situation where you have overstayed your visa, it's crucial to take steps to legalize your status as soon as possible. This can be a complex and challenging process, and it's recommended to seek the guidance of an experienced immigration attorney who can help you understand your options and guide you through the necessary steps.

Overstaying a B2 visitor visa can have serious immigration consequences, but marrying a U.S. citizen can provide a path to adjust your status and obtain a green card since overstay is forgiven by virtue of being a spouse of a US Citizen spouse. The lesson to learn here is that whatever happens, your petitions must be successful and must not fail.

These are the some of the basic steps to ensure a successful adjustment of status

• Marriage to a U.S. Citizen: The first step in adjusting your status is to marry your U.S. citizen spouse. Your marriage must be bona fide, meaning that it was entered into for genuine reasons and not just for immigration purposes.

• File Form I-130, Petition for Alien Relative: Once you are married, your U.S. citizen spouse must file Form I-130, Petition for Alien Relative, on your behalf. This form is used to establish the qualifying relationship between you and your spouse. All supporting legal documents and translations must be provided.

• File Form I-485, Application to Register Permanent Residence or Adjust Status: After your spouse's I-130 petition is approved, you can file Form I-485, Application to Register Permanent Residence or Adjust Status. This form is used to apply for a green card. Strong marital evidence must also be provided along with this form.

• Attend Biometrics Appointment and Interview: After filing Form I-485, you will receive a notice to attend a biometrics appointment, where your fingerprints will be taken. You will also have to attend an interview with an immigration officer.

• Wait for a Decision: Once you have attended your interview, you will need to wait for a decision on your application. If your application is approved, you will receive your green card in the mail.

It's important to note that even if you have overstayed your visa, being married to a U.S. citizen can make you eligible to adjust your status from within the United States. However, if you leave the U.S. and try to re-enter, you may be subject to a three or ten-year bar, depending on the length of your overstay. For this reason, it's essential to consult with an immigration attorney before taking any actions that could affect your immigration status.

In conclusion, while overstaying a B2 visitor visa can complicate the process of adjusting your status, marrying a U.S. citizen provides a path to obtaining a green card. It's essential to follow the steps outlined above and consult with an immigration attorney to ensure your application is successful. Below are some questions that occasionally arise during discussions of the above subject matter.

Is my visitor visa overstay forgiven if I marry my US Citizen spouse?

Yes, if you are married to a U.S. citizen, your overstay can generally be forgiven, and you can adjust your status to that of a lawful permanent resident (green card holder) from within the United States, under the Immigration and Nationality Act (INA) §245(a). This provision allows the immediate relatives of U.S. citizens, which include spouses, to adjust their status even if they have overstayed their visa.

However, please note that while the overstay is forgiven for the purposes of adjusting status within the U.S., it can still have consequences if you depart the U.S. and then seek to return. If you have accumulated more than 180 days but less than one year of unlawful presence and you leave the U.S., you could be barred from reentering for three years. If you have accumulated one year or more of unlawful presence and you leave the U.S., you could be barred from reentering for ten years. These are known as the three-year and ten-year bars, respectively.

Is my overstay forgiven if I marry my Permanent Resident spouse?

No, marrying a permanent resident does not provide the same protection against visa overstays as marrying a U.S. citizen. If you overstay your visa and are not married to a U.S. citizen, you may be subject to penalties, including a three- or ten-year bar from reentering the United States.

If you are married to a permanent resident and wish to adjust your status, you will typically need to wait for a visa number to become available. However, if you have overstayed your visa, you may not be eligible to adjust your status from within the United States because you must be in status in order to be sponsored by the permanent resident spouse. It is likely that an I-130 would be approved in this situation but an I-485 would be denied. You may be required to return to your home country to complete the visa process, which could trigger the three- or ten-year bar.

There are some exceptions and waivers available in certain situations, but these are complex and require the assistance of an immigration attorney.

Do I have to extend my B2 visa while the adjustment of status is pending?

No, you are not required to extend your B2 visitor visa while your Adjustment of Status (AOS) application is pending. Once you have filed Form I-485, Application to Register Permanent Residence or Adjust Status, you are allowed to remain in the United States even if your B2 visa expires, as you are in a period of authorized stay while your application is being processed.

However, it's essential to note that while your AOS application is pending, you should not leave the United States without first obtaining Advance Parole by filing Form I-131, Application for Travel Document. Leaving the country without Advance Parole can result in the abandonment of your AOS application.

It's also worth noting that while you are in the U.S. with a pending AOS application, you may be eligible to apply for an Employment Authorization Document (EAD) by filing Form I-765, Application for Employment Authorization. This document allows you to work legally in the United States while your AOS application is pending.

In summary, you do not need to extend your B2 visa while your AOS application is pending. However, you should consult with an immigration attorney to ensure you comply with all requirements and avoid any actions that could jeopardize your application.

What happens if my adjustment of status is pending and I have overstayed my visa by six months and then my spouse and I are getting a divorce before my GC is approved?

If your Adjustment of Status application is pending, you have overstayed your visa by six months, and you get divorced before your Green Card is approved, this could have serious implications for your immigration status.

When you file for a Green Card based on marriage to a U.S. citizen or permanent resident, the success of your application is generally contingent on the validity of your marriage. If you get divorced before your Green Card is approved, U.S. Citizenship and Immigration Services may deny your application on the grounds that the basis for your eligibility (your marriage) no longer exists.

Furthermore, because you have overstayed your visa by six months, you may be subject to a three-year bar from reentering the United States if you depart the country. This means that if you leave the U.S. after your divorce and your AOS application is denied, you may not be able to return for three years or more.

Conclusion: The legal implications of overstaying your visa while awaiting Adjustment of Status approval are significant and can have a long-lasting impact on your ability to live and work in the United States. It's crucial to understand the potential consequences and take steps to avoid overstaying your visa, such as regularly checking your visa status, seeking legal advice if you find yourself in a situation where you may overstay, and taking prompt action to regularize your status if necessary. By staying informed and proactive, you can help ensure a positive outcome for your immigration journey. Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com, or review other options to get in touch with us for an immigration consultation.