It is possible to overstay your visa while waiting for your green card. This article explains what a visa overstay is and how it may affect your immigration status.
Visa overstay generally occurs when a person remains in the US, by any means, past their authorized period of stay. Overstaying your visa can lead to serious consequences, including deportation and denial of re-entry into the US.
There are two processes through which you may obtain a green card. You can apply for a green card through consular processing or adjustment of status (AOS).
AOS is the process that allows you to apply for a green card from within the US. When you use AOS, you can remain in the US as you wait for your green card to be processed even if your visa expires.
Conversely, consular processing requires you to apply for a green card while you’re outside the United States. When you use consular processing, you must remain outside the US until your green card is processed by the nearest US embassy/consulate.
Consular processing and adjustment of status have different application forms, costs, timelines and required supporting documents, but the green card eligibility requirements are similar.
The consular process involves an interview with a US government embassy official in your country. If the US embassy official discovers that you have previously overstayed your visa, they can penalize you by denying you permission to return to the US for three years. If you’ve overstayed your visa for a whole year, you can be barred from returning to the US for 10 years.
Who Is Eligible to Adjust Status After Visa Overstay?
Here are two scenarios where you may be able to adjust status even if your visa has expired:
- You entered the US legally and have applied for residence as an immediate relative (e.g., a minor unmarried child, spouse or parent) of a US citizen.
- You have filed a labor certification or visa petition under old law 254i.
If you have any questions about whether either of these scenarios applies to you, your best option is to speak with an experienced immigration lawyer as soon as possible.
Renewing Your Immigration Status
If you see that your visa might expire before you apply for status adjustment, you should consider getting legal help before your authorized stay period expires. An attorney can help you determine whether it’s possible to apply for an extension or come up with other solutions to your situation.
For example, suppose you have already applied to USCIS by filing Form I-145, provided all required documents and received an acknowledgment that it has been received and accepted for processing. In that case, you would not have to worry about renewing your visa. Your status in the US would be considered legal as you wait for your adjustment of status interview.
If your authorized period of stay is about to expire or you have overstayed your visa but believe you are eligible for a green card, consider getting help from an immigration attorney. Someone skilled in helping individuals with visas can help you analyze your situation and advise you on the best course of action.