Can You Get a Green Card if You Overstay Your Visa?

The process of changing one’s status from a nonimmigrant visa to a lawfully admitted permanent resident (green card holder) is known as adjustment of status. One starts this process by filing the appropriate paperwork with the United States Citizenship and Immigration Services (USCIS). Because of complications that often arise for many applicants, it is best to have an experienced immigration lawyer guide you. At Kriezelman Burton & Associates, LLC, we have experienced immigration lawyers who routinely help nonimmigrants in the Chicago area to adjust their status to green card holders.

Overstaying a Visa

A question we frequently get asked is whether you can get a green card if you overstay your visa. You overstay your visa if you have not left and have remained in the United States beyond the approved period. Your approved period of stay is as it is indicated on your form I-94 travel record.

Although foreign visitors arriving in the U.S. via air or sea are no longer required to complete the paper copies of Form I-94, this form is now issued and is available electronically. The form contains the visitor’s name and details of their arrival date and the date by which they’re expected to depart the U.S. This date does not necessarily match the visa expiry date on the visa stamp in your passport.

Unlawful Presence

If you do not depart from the United States before on or before your authorized period of stay in your Form I-94, you start accumulating what is known as “unlawful presence” from the day after you are supposed to leave the U.S. This unlawful presence time is the time you are in the United States without lawful immigration status.

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

Accruing unlawful presence has severe consequences based on the length of your unlawful presence. For example, if you leave the United States at some point after you have started accruing unlawful presence, you are subject to a 3-year bar or a 10-year bar from re-entering the United States. A 3-year bar applies if you were unlawfully present for more than 180 days but less than one year. The 10-year bar applies if you were unlawfully present for more than one year.

Effect of Overstaying on Green Card Application

You can apply and obtain your green card in the United States if you have overstayed your visa, but only if you meet certain conditions. For example, the harsh provision of unlawful presence will not apply to you if you are adjusting your status based on being an immediate relative of a United States citizen or are covered under what is known as “Section 234(i). An immediate relative is a spouse, unmarried child under the age of 21, or parents of a United States citizen.

If either of these situations applies in your case, then you can adjust your status to a green card holder without leaving the United States, assuming you meet all other requirements and are not otherwise barred from adjusting other grounds.

If you have overstayed your visa and are wondering if you can obtain a green card here in the United States, contact our office to discuss your options.