While a visa overstay is a serious issue that can have severe immigration consequences, it doesn’t automatically disqualify you from getting permanent residence.
Your ability to get a green card depends on factors like the type of visa you had, how long you overstayed, and what other immigration options may be available based on your circumstances.
Consequences of Visa Overstays
When you enter the U.S. on a visa, you are generally given a specific period of authorized stay. This is the date by which you must leave the country. If you remain in the U.S. beyond this date without extending your stay or changing to a different immigration status, you start accruing “unlawful presence.”
Unlawful presence can lead to serious penalties:
- If you accrue 180-364 days of unlawful presence, leave the U.S., and then attempt to reenter, you can be barred from coming back for 3 years.
- If you accrue 365 days or more of unlawful presence, leave the U.S., and attempt to reenter, you can be barred for 10 years.
- If you accrue more than 365 days of unlawful presence in total during multiple stays and attempt to reenter the U.S. without being admitted or paroled, you can be permanently barred.
These “unlawful presence bars” can make it very difficult to immigrate in the future. They prevent you from obtaining a green card through normal processing at a U.S. consulate abroad. You’d need to qualify for a waiver, which is challenging.
However, these bars are only triggered if you leave the U.S. and try to reenter. If you overstayed a visa but have not departed the U.S., the 3/10 year and permanent bars have not kicked in (though you are still accruing unlawful presence). This is where some green card options may still be open.
Adjustment of Status with an Overstay
Certain green card applicants may be eligible to “adjust status” – meaning apply for a green card from within the U.S. – even with an overstay. Common examples include:
- Immediate relatives of U.S. citizens. This includes spouses, unmarried children under 21, and parents (if the citizen is over 21). Immediate relatives are exempt from the bars based on unlawful presence, and can generally adjust status even with an overstay as long as they entered the U.S. legally.
- Certain employment-based cases. Some foreign workers may still be able to adjust status with an overstay if they meet other eligibility requirements and have an approved immigrant petition (like an EB-1, EB-2, or EB-3).
- Special situations. Certain other groups, like asylum seekers, U visa holders (victims of certain crimes), VAWA self-petitioners (domestic violence survivors), and some military families can typically adjust status with an overstay.
To adjust status, you file Form I-485 with USCIS and remain in the U.S. while it processes. Importantly, this allows you to avoid the unlawful presence bars since you are not leaving and reentering.
However, accruing unlawful presence makes your immigration situation more tenuous even if you don’t trigger the bars. You face potential ICE enforcement if discovered. There are also fewer ways to extend or change status with an overstay. An immigration attorney can help you weigh the risks and benefits of adjusting with an overstay.
Options If You Don’t Qualify to Adjust Status
If you can’t adjust status, it’s much harder to get a green card after an overstay. When you go abroad for consular processing, the unlawful presence bars will kick in. You can request a waiver by filing Form I-601A or Form I-601, but you must show your U.S. citizen or permanent resident spouse or parent would suffer “extreme hardship” if you couldn’t return. This is a high standard.
Another path is to voluntarily depart the U.S., wait out the 3 or 10-year bar abroad, and then start over with a new green card application. Of course, this means significant time separated from family in the U.S. and a difficult transition. It’s not feasible for all families.
In some cases, it may be possible to avoid the bars through arguing you qualify for an exception in the complex immigration laws. Creative solutions could include:
- The “minor child” argument that minors do not accrue unlawful presence
- The “non-immigrant” argument for A, G, and NATO overstays
- Lack of “unauthorized employment” arguments
These are very fact-specific legal arguments. Consult an experienced immigration lawyer to see if any exceptions could apply to you before leaving the U.S.
Get Legal Advice About Green Card Eligibility with an Overstay
Immigration law is incredibly complex, especially when it comes to the consequences of a visa overstay. Whether you can still get a green card and what risks you face depends heavily on the details of your situation. Trying to navigate the system on your own can backfire, leading to severe outcomes like long separations from family or permanent barriers to immigration.
At the Law Office of Lina Baroudi in San Jose, CA, we understand how stressful an overstay situation is. We’re here to help you assess your green card options compassionately and realistically. Our Bay Area immigration attorneys have significant experience with complex cases, including helping clients adjust status or pursue waivers and legal arguments after an overstay.
You may still have a path to permanent residence, but the stakes are too high to take chances. Contact us today to start getting reliable, professional guidance on your immigration options. The sooner you understand your situation and make a plan, the better positioned you’ll be to achieve your American dreams.
