When you want a green card in the US, U.S. USCIS (the US Department of Citizenship and Immigration Services) is concerned about your immigration record. If you violate US immigration regulations for example, if you overstay your visa, are in the United States illegally, or just entered illegally it will slow down the green card process. In this post, we’ll share with you what can affect your chances of getting a green card, what the consequences of your previous violations can be, and how you can work around it.
What Are Visa Overstays, Illegal Presence, and Illegal Entry?
Let’s take a quick definition of these terms before moving on to the technicalities:
Visa Overstay: When you are visiting the U.S. on a valid visa (tourist or student visa) but stay longer than your visa permits.
Illegal Involvement: If you’re living in the U.S. illegally (after your visa runs out, or without a visa), you are illegally present. That’s the same phrase if you’re in the country illegally.
Illegal Entry: You were able to enter the United States without having been examined (meaning you didn’t pass the border check or immigration).
In case any of these describes you then it may be detrimental to your green card application but there is a way around it.
When I Overstay a Visa, What Does It Mean For My Green Card Application?
If you are in the U.S. legally, but you extend your visa, that can be a serious blow to your green card application. Here’s how:
Overstay less than 180 days: Stay in the US for less than 180 days after your visa runs out, your visa is void and you will have to apply for a new visa to return. But you don’t need to leave the country to apply for a green card in the U.S. This is the challenge of getting that visa approved, so you don’t get a visa for your second trip back.
Overstay of 180 Days or More: If you overstay 181 days or more, you will be temporarily prevented from entering the US. If your illegal visit is 180-365 days long, then you will be banned for 3 years. If you’ve been a US resident for over 12 months, you can’t return for 10 years. It’s the “three-year” or “ten-year” re-entry bar.
But if you have stayed on your visa but married a U.S. citizen, you can still get a marriage green card without leaving the U.S. This is for individuals who qualify under certain conditions. More information about this process can be found in our green card for spouses of US citizens guide.
When you Travel After Overstaying a Visa, What Should You Do?
But, if you have overstayed your visa and you want to get out of the US, do not go crazy. If you’ve been illegally present for more than 180 days, you could trigger the 3- or 10-year stay if you get out of the country. The main tip is, do not leave the United States until you get your green card. But if you are a dependent of a U.S. citizen, you might qualify for a travel permit while your green card is in processing. This can let you go out of the United States without breaking the re-entry bar. Remember that this is not always the case all the time, so be sure to read the up-to-date news before making any decisions.
Unlawful Entry & Green Card Application Impact: What Is Going On?
If you entered the U.S. illegally, then getting a green card is not so easy. How does illegal entry play into your hands:
It does not matter if you entered the U.S. illegally and did not apply for a green card from the U.S.
You Leave the U.S. to Get a Green Card: If you leave the country to get a green card at a U.S. embassy or consulate, you’ll be subject to the 3-year (or 10-year) re-entry bar depending on how long you were in the U.S. illegally.
Deportation and Re-entry: If you were deported from the US, and then re-entered the United States illegally, you could be barred from re-entry for life. This means you would never be able to enter the U.S. again.
Immunity From Inadmissibility Under Immigrant Laws (Foreign Activity).
If you’ve been found guilty of an immigration offense illegal entry, or overstaying a visa you could get a waiver of inadmissibility. This waiver lets you come back to the U.S. after illegal presence or illegal entry. If you can get the waiver, you will have to show that your qualified relative (for example, spouse or parent who is a U.S. citizen or green card holder) would face “extreme hardship” if you aren’t allowed to remain in the United States.
For instance, you’ll have to prove that your family member would suffer if you were ostracized from the U.S. while your green card application is processed. Waiver is tough, but you can get it with the right argument.
Applying for a Provisional Waiver
You used to need to leave the U.S. before you could ask for a waiver at the U.S. embassy. But now, you can obtain a provisional waiver and then leave the U.S. This cuts down on your time out of the US and also makes it a little bit more certain that your waiver will be approved. You can get a provisional waiver if you qualify. This is especially helpful if you have U.S. citizen or green card spouses.
What If You’ve Been Deported?
You can be banned from the U.S. for life if you were deported and brought back illegally. If deported & then stayed over a year before returning, you will be prohibited from returning for 10 years. If you were deported, but returned to the U.S. unaccompanied, you risk a lifetime restriction on entry.
Most Common Questions on Immigration Violations and Green Cards.
What is a “visa overstay”?
Visa overstay – You arrive in the U.S. on a valid visa or under the Visa Waiver Program but stay beyond the permissible period.
What is “unlawful presence”?
Unlawful presence: You are in the U.S. illegally as a result of not being on legal immigration, either your visa was expired or you were illegally admitted.
What is “illegal entry”?
Illegal entry is when you cross the U.S. border without a proper border check, that is, not cleared by US Customs and Border Protection.
If you’ve been overstaying your visa, are in the U.S. illegally, or have been present illegally, don’t panic. These are things that make your green card application more challenging but they do not stop you from getting a green card especially when you are family or marriage dependent. If you’re a candidate, know your rights, such as applying for waivers or provisional waivers.
If you need any help on how to navigate your green card application, Law and Visas provide the right tips and advice so that you do it correctly and get the best outcome possible. Get started on your immigration process today!
