All You Need to Know about Marrying a US Citizen after a Visa Overstay

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.

Overstay of more than 180 days –

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 Citizen

The 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 Overstay

The 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 Fraud

You 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.