Can You Apply for a Green Card After an Overstay?
Overstays are never a good idea if you are serious about seeking permanent residency in the United States. Nevertheless there are methods that immigration lawyers can use to make a green card application after an overstay.
These methods will not work in every case. They are only available to immediate relatives of US citizens who are otherwise eligible for sponsorship, after re-entry bars have been met, or in the limited circumstances in which a Waiver of Inadmissibility may apply.
There are also instances in which you may not have overstayed your visa at all. Your visa expiration date may come sooner than the end of your authorized stay. You should check your I-94 to determine the authorized length of your stay. Many of my clients have feared that they have overstayed only to find they still had time.
Immediate Relatives
This exception does not cover every relative that might otherwise be eligible for an I-130 petition. Instead, it covers the parents, children, and spouses of US citizens. This applies to citizens only and not to the parents, children, and spouses of lawful permanent residents.
The form you’d have to fill out also changes for an overstay. You’d now use Form I-485 instead of form I-130.
If you wish to travel while waiting on your green card and you overstayed your visa you can still apply for Advance Parole. This will help you avoid re-entry bars, but you will absolutely need an attorney’s help before you do this. US immigration policy shifts very quickly. Travel should only be conducted at great need, as it can jeopardize your ability to apply for a green card later.
Re-Entry Bars
There are instances where you can overstay, return to your home country, wait out your re-entry bar, and then apply for a green card if you are eligible for any category of green card.
A re-entry bar can last three years or ten years. The number of days that you’ll be barred depends on the length of your unlawful stay. You’ll receive a three year bar if you accumulated six months to one year of unlawful presence; if you accumulated one year or more you’ll be barred for ten years.
This does not mean that you can stay three or four months past your date and be safe. Ideally you will accumulate zero days of unlawful presence if you want to become a legal permanent resident of the United States at any point.
Waivers of Inadmissibility
A waiver of inadmissibility, or an I-601, is essentially a formal, legal request that the United States overlook your overstay. These are not easy to get. Your attorney will have to prove that a United States citizen or lawful permanent resident will experience “extreme hardship” if you are forced to leave or face re-entry bars.
In most cases these waivers are offered to the immigrant-parents of United States citizens, or to the children of elderly parents who may be heavily involved in their care. We can make good arguments for your ability to meet these requirements, but they must have some basis in fact.
See also:
What is an Affidavit of Support?
