Parents Us Citizen Overstay Green Card File Again

The questions vary from, "Can I apply for a dark-green carte afterwards a visa overstay?" to "What happens if my visa expires and I marry a U.S. citizen?" The people asking these questions are concerned with obtaining a legal status in the The states despite a menstruation of unlawful presence.

It is possible for certain people to obtain a green card after a visa overstay. However, several atmospheric condition must be true. Other individuals can create long-term clearing problems past applying for immigration benefits after a visa overstay.

In order to explain who is eligible to apply for a green carte after an overstay, it'southward essential to get a movie of the entire landscape.

Visa Overstay Explained

Commencement, it's of import to define visa overstay because information technology isn't equally obvious as many call up.

Two Ways to Autumn Out of Condition

When a strange national remains in the United States longer than the period of authorized stay, it's chosen "overstaying" a visa. An overstay includes a non-immigrant visa holder who was lawfully admitted to the United states of america for an authorized menstruum merely stayed in the Us beyond his or her authorized admission period.

Notwithstanding, the U.S. government volition besides consider non-immigrants admitted for "duration of status" who neglect to maintain their status to be overstays. "Duration of status" is a term used for foreign nationals who are admitted for the duration of a specific program or activity, which may be variable, instead of for a gear up timeframe. The authorized admission menstruum ends when the strange national accomplishes the purpose for which they were admitted, or is no longer engaged in authorized activities pertaining to that purpose. For example, a foreign pupil who enters the U.S. for a program that runs for four years must leave when the program is completed, or proceed to pursue another program of study.

Refer to Your I-94, Not Visa Expiration

However, don't refer to your visa for this information. A non-immigrant visa may be valid for several years. However, the visa does not govern the length of your authorized stay in the U.Due south. — it but allows you to enter the United States during that time period. Instead, your Form I-94 Arrival/Departure Tape governs your authorized stay in the United States. The "admit until date" on your I-94 tape is the last twenty-four hour period you lot are permitted to remain in the U.South., and it may non be valid for as long every bit the visa is valid. You must depart the U.Due south. by the date on the Form I-94, or yous will have overstayed the visa.

I-94 website. However, if you entered through a country edge port of entry, CBP likely provided you a paper I-94.

3- and 10-Year Confined to Reentry

It'south too helpful to understand the three- and ten-year confined. In 1996, Congress passed a police that confined certain individuals who have accumulated a period of "unlawful presence" in the U.S. from becoming U.S. permanent residents. Unlawful presence includes any time spent in the Us by a strange national:

• Who entered the U.Due south. without inspection and admission or parole; or
• Whose lawful immigration status expired or was rescinded, revoked, or otherwise terminated.

Thus, any time spent in the U.Due south. beyond what is authorized on an I-94 record (visa overstay) is a period of unlawful presence. The catamenia of unlawful presence begins on the day the status expires. But these "bars" are only triggered once the individual leaves the Us. The 3- and 10-year bars break downwards like this:

• Persons who have accumulated 180 days or more of unlawful presence, and take then left the country, cannot return to the U.s. for iii years.
• Persons who have accumulated ane year or more of unlawful presence, and accept and so left the state, cannot render to the United States for 10 years.

It is possible in certain circumstances to obtain a waiver for a bar to reentry. However, there'southward a high standard to prove that the U.Due south. citizen'due south spouse would suffer "farthermost hardship" if not granted the waiver. We highly recommend using an experienced immigration attorney to request this waiver. Needless to say, this gets expensive. In that location is another solution for immediate relatives of U.Southward. citizens who have not yet departed the United States.

Visa Overstay Forgiveness: Special Provisions for Immediate Relatives

Adjustment of status is the procedure that a non-immigrant company (e.g. student, tourist, etc.) uses to change status to a permanent resident from within the United States. In other words, adjusting status is the process of applying for a green carte du jour within the U.S. Generally, adjustment is available to foreign nationals who have a lawful entry and have an immigrant visa immediately available to them.

Yet, a foreign national is typically barred from aligning of status if the applicant is in an unlawful clearing status on the date of filing the adjustment application. But a provision in the law exempts the immediate relatives of U.Southward. citizens from the visa overstay. The firsthand relative category includes the spouse, parents, and unmarried children (under historic period 21) of U.S. citizens. Therefore, the law provides some "visa overstay forgiveness" for firsthand relatives.

Recollect, it is necessary for the immediate relative to take a lawful entry to the United States to be eligible for adjustment of status. Inbound the U.Due south. with a valid visa counts as a lawful entry, fifty-fifty if that visa has since expired. However, someone who has entered without inspection (snuck beyond a border) is non eligible. Then non anyone tin adjust condition – the applicant must accept a lawful entry to submit the green carte application.

RECOMMENDED: Getting a Green Card through Marriage to a U.Southward. Citizen

Awarding to Conform Condition After an Overstay

By returning to the dwelling house country to undergo consular processing for a light-green card, intending immigrants with a significant period of unlawful presence will trigger a bar to reentry. In the best cases, this will be an expensive and time-consuming process that requires to help of a lawyer. In the worst cases, the event could be catastrophic to the immigration process.

But immediate relatives of U.S. citizens that are presently within the The states through lawful entry may be eligible to conform condition to permanent resident (light-green bill of fare holder). Past filing the Grade I-485, Application to Adjust Status, and other required forms in a single parcel, intending immigrants give U.S. Citizenship and Immigration Services (USCIS) everything necessary to process the case and make a determination as shortly every bit possible. The typical family-based adjustment of status package includes the following forms:

• I-130, Petition for Alien Relative
• I-130A, Supplemental Information for Spouse Beneficiary (if casher is a spouse)
• I-485, Application to Register Permanent Residence or Adjust Condition
• I-864, Affidavit of Support
• I-693, Report of Medical Examination and Vaccination Record
• I-765, Application for Employment Say-so (optional)
• I-131, Application for Travel Document (optional)

A complete aligning of status application packet will besides include several supporting documents as required by each USCIS form. CitizenPath's affordable software will aid you hands set the awarding packet. In addition to your prepared forms, CitizenPath provides you lot with a prepare of personalized filing instructions that are customized to your specific situation. The filing instructions provide detailed directions on supporting documents, how to organize your application, and where to mail service information technology. See the typical fees for an aligning of status application.

Fraud

USCIS vigilantly reviews cases for any type of immigration fraud. Remember that about every U.S. non-immigrant visa is temporary in nature and has a specific purpose. When you lot do things outside the scope of that visa, in that location is the potential for violating the terms of the visa and even beingness accused of fraud. There are two types of fraud typically associated with obtaining a green card through marriage.

Visa Fraud

Misrepresenting the reasons for requiring a particular blazon visa of visa is a form of visa fraud. And so if you lot visit the U.South. on a tourist visa (B-2) with the underground intention of getting married, you volition have committed visa fraud. Your "intent" is the central focus here. A B-ii visa is specifically for people who intend to stay temporarily and then return home. Someone who plans to marry and then remain in the United States is violating the terms of the visa. Visa fraud tin can event in losing the right to obtain a greenish carte du jour.

Marriage Fraud

Marriage fraud is when at least one of the parties of a marriage entered into the marriage for the purpose of circumventing immigration laws to falsely learn immigration benefits. In other words, getting married for the master purpose of obtaining a green card is a clear example of fraud. Wedlock fraud results in steep penalties, including jail time and fines. What'southward more, fraud makes information technology exceedingly difficult to obtain a future greenish card application approval. There is a burden of proof on the couple to evidence that the marriage is bona fide on the I-130 petition. And then don't think that you tin easily play a joke on the system.

RECOMMENDED: Best Evidence of Bona Fide Spousal relationship to Support a Spousal I-130 Petition

Visa Overstay Examples

Overstay of a Family-Preference Immigrant (Poor issue)

Jaime, a citizen of Columbia, arrived in the Usa on a B-2 to visit friends. During his visit, he met and began dating a permanent resident. Jaime decided to stay in the U.Due south. even after the visa expired. The couple eventually got married and looked into permanent resident status for Jaime. Unfortunately, Jaime is non eligible to adapt condition. His wife is a green card holder, not a U.Due south. citizen. Therefore, he is in a family unit preference category. He cannot file Form I-485 after his visa overstay. Jaime is in a difficult situation. If he leaves the United States, he will be barred from reentry for x years. If he stays without legal help, he is undocumented. Jaime should have returned to Columbia earlier the visa expired. His permanent resident spouse could then petition him, and Jaime could have obtained a greenish card through consular processing.

Deviation after Expired F-one (Poor outcome)

Kenji, a Japanese citizen, has been studying in the United States on an F-i student visa. During the course of his stay, he met a U.S. citizen. The couple decides to ally and settle in the U.S. Innocently, the couple doesn't realize that marriage doesn't automatically provide a lawful immigration condition. Kenji has overstayed his F-ane visa by 200 days earlier he realizes that he'due south unlawfully present in the U.South. He decides to quickly render to Japan and utilise for a green bill of fare there. Withal, the departure triggers a iii-twelvemonth bar. Without the assistance of an attorney and a waiver, he won't exist able to obtain a dark-green card and return to his spouse in the United states. Had he used the adjustment of condition process to obtain a green carte, he could have avoided the expensive and lengthy trip to Japan.

K-i Fiancé (Positive outcome)

Heidi, a British citizen, enters the United states of america on a K-1 (fiancé visa) sponsored past her U.S. citizen fiancé. The couple ultimately decides that they do not want to get married, but Heidi remains in the U.Due south. Heidi eventually meets another U.Southward. citizen and marries a year later. She has been out of status and hopes to suit status to permanent resident based on her new relationship. Although Heidi is out of condition, she is able to apply for a green carte considering her husband is a U.S. denizen. They will demand to file an I-130 petition to establish this qualifying human relationship.

Adjustment of Status (Positive upshot)

Karun, a citizen of Republic of india, came to the U.Southward. on a work visa. She met a U.Southward. citizen and began dating. Unfortunately, her employer lays her off. Only she didn't return to India because her relationship had gotten very serious. The couple marries a year after her clearing status terminated. At present, she is unlawfully present and married to a U.Due south. denizen. By filing an adjustment of status application, Karun tin go a permanent resident without leaving the United States and without the need for a complicated waiver.

Cautionary Notes

Although the spouse of a U.S. citizen (or other immediate relatives) may adjust condition to permanent resident after a visa overstay, that does not protect the immigrant from enforcement during the catamenia of unlawful presence. In other words, the immigrant is still vulnerable to deportation from the moment he or she falls out of status upwards until becoming an adjustment of condition bidder. Therefore, it is important to file an aligning of status every bit soon as reasonably possible.

The word above likewise assumes that the intending immigrant does not have criminal offenses or immigration violations that otherwise make the person inadmissible for permanent residence. Anyone with these serious complications should consult with an immigration attorney.

RECOMMENDED: Grounds of Inadmissibility for Permanent Residence

Not Eligible for Adjustment of Status

As discussed above, immediate relatives may by and large suit status after visa overstays. Persons in the family preference category who accept overstayed are in a more hard position. Generally, they may not conform condition due to this violation. But if they depart the United States, they may also be barred from reentry due to the iii-year and x-yr bars. Certain individuals in the family unit preference category may qualify for a provisional stateside waiver obtained through Class I-601A.

RECOMMENDED: Determining if You Need the I-601A Waiver for Unlawful Presence

About CitizenPath

CitizenPath provides simple, affordable, step-by-step guidance through USCIS immigration applications. Individuals, attorneys and not-profits use the service on desktop or mobile device to set clearing forms accurately, avoiding plush delays. CitizenPath allows users to try the service for gratuitous and provides a 100% money-back guarantee that USCIS will approve the application or petition. Nosotros provide support for the Aligning of Status Application (Form I-485), Petition for Alien Relative (Form I-130), Citizenship Application (Form N-400), and several other commonly used immigration forms.

Note to Reader: This mail service was originally published on April iv, 2017, and has been modified with improvements.

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Source: https://citizenpath.com/visa-overstay-usa-green-card/

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