inside immigration information about marriage green cards and work visas in America
ADJUSTMENT OF STATUS THROUGH A U.S. CITIZEN SPOUSE WHEN OVERSTAYED B2 VISA
Getting married to someone who overstayed their visa? It happens. After you find out the news that they overstayed their visa, you scramble to figure out the immigration rules so that they can stay in the USA.
You are in luck! A foreign national who can prove they entered the U.S. legally, in most cases, is still allowed to adjust their status (get their marriage green card) if they are an “immediate relative” of a U.S. citizen despite the fact that they (a) overstayed their visa; and (b) worked without authorization. Spouses of U.S. citizens qualify as an immediate relative.
For example, I had a client from Brazil who entered the USA as a tourist with his B2 tourist visa in 2002. He never lost the passport he used to enter the USA or the I-94 Card that was given to him when he entered. But he stayed in the USA and did not leave when he was supposed to leave. For ten years.
Throughout the ten years he stayed in the USA (he never left the USA even once) and started his own company to support himself. He bought a car and a house. Then, in 2012, ten years later, on a ski trip he fell in love with a U.S. citizen. They planned a wedding and got married inside the USA. They filed an adjustment of status application and he was granted a marriage green card by immigration. How is that possible?
What are the Overstay Rules?
One of the two main requirements for adjustment of status is:
1. The applicant must have been “inspected” at the U.S. border (or airport) and formally admitted into the U.S. (see Immigration & Nationality Act §245). The applicant must present proof that they entered the United States with a valid passport and a valid visa. Exceptions are made for visitors from certain visa waiver countries and Canada when no visa is required.
2. The applicant must not be “inadmissable.” (see Immigration & Nationality Act §245). Immigration law in the U.S. says that when adjusting status to permanent residence based on marriage, the following two situations are generally not allowed:
(a) failure to maintain continuous lawful status (overstay visa); and,
(b) engagement in unauthorized employment.
Exception for “Immediate Relatives” for Overstay and Working Without Authorization
Immigration laws in the U.S. state that certain applicants for adjustment of status who are “immediate relatives” (spouses, children under 21 years of age, or parents of U.S. citizens) are excused from the two “inadmissable” bars mentioned above (unlawful status and unauthorized employment) so long as the applicant can prove he/she was inspected by immigration officers at the U.S. border (or airport) with a valid passport and visa (if required).
An official waiver of inadmissibility form for overstaying a visa is not required to be filed with the AOS package for individuals who are immediate relatives.
Therefore, if person enters the USA as a B2 tourist, or an E3 Australian professional, or an F-1 student, or many of the other visa categories (not all), and they overstay their visa, they may still be eligible for a marriage green card if they are married to a U.S. citizen.
Acceptable proof of inspection for adjustment of status purposes includes a copy of the passport, a copy of the visa used to enter the U.S. and a copy of the I-94 Card (or the new I-94 download).
Are There Special Rules for Visa Waiver Entrants?
There was a policy memorandum issued in November 2013 providing guidance on the adjudication of Form I-485, Application to Adjust Status, filed by immediate relatives of U.S. citizens who were last admitted under the Visa Waiver Program (VWP). This policy memorandum explains that INA section 245(c)(4) renders persons admitted under the VWP (visa waiver program) ineligible to adjust status to that of a person admitted for permanent residence. This provision, however, includes an exception for immediate relatives of U.S. citizens.
Therefore, the memorandum continues, an individual admitted under the VWP who is also an immediate relative is not precluded from seeking adjustment of status, even after the VWP period has expired, so long as there is no negative factors (such as certain criminal convictions, contact with ICE Officers, etc.). It is advisable to talk to an immigration attorney if any of these negative factors are present.
Attorney Danielle Nelisse has successfully processed hundreds of marriage green cards over the last 15 years – it is one of her areas of specialty. If you have questions you can call her at (619) 235-8811 or email her at firstname.lastname@example.org.
Green Card Questions for Married Couples?
What are the special issues if my spouse just entered the USA as a B-2 Tourist ?
Exactly what happens at a same sex marriage green card interview?
How do I get married?
What are the issues if my gay spouse entered the USA as a B-2 Tourist ?
Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.
What if my spouse entered the USA legally, but overstayed their visa?
What if my spouse is HIV positive?
Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?