Applying for a U.S. green card is a significant step, but if you’ve had prior immigration violations, it could complicate the process. The United States Citizenship and Immigration Services (USCIS) takes violations of immigration laws, such as overstaying a visa, being unlawfully present, or entering the U.S. without inspection, very seriously. However, with the right guidance and understanding, it’s possible to navigate these challenges and still achieve your immigration goals.
At Law and Visas, we’re here to support you in understanding how past immigration violations can impact your green card application. Let’s break it down in simple terms.
What Happens If You Overstay Your Visa?
Overstaying your visa means you stayed in the U.S. longer than allowed. This could happen on a tourist visa, student visa, or even under the Visa Waiver Program (VWP). Here’s how overstaying can affect your situation:
- Overstay Less Than 180 Days:
If you overstayed by less than six months, your visa is automatically void. You’ll need to apply for a new visa from your home country to re-enter the U.S. Although you can still return, you’ll need to convince the consular officer that you won’t overstay again. - Overstay More Than 180 Days:
If you overstayed for 181 days or more, you’ll face a re-entry bar:- 3-Year Bar: Applies if you overstayed between 180 days and one year.
- 10-Year Bar: Applies if you overstayed for more than a year.
If you are married to a U.S. citizen, however, you can still apply for a green card while staying in the U.S. without leaving the country.
What Is Unlawful Presence?
Unlawful presence begins when your authorized stay ends. For example, if your visa expires or you enter without permission, every day after that counts as unlawful presence.
- How It Impacts You:
- Being unlawfully present for over 180 days activates the re-entry bars.
- If you remain unlawfully in the U.S. but entered legally and are married to a U.S. citizen, you can apply for a marriage-based green card without leaving.
Illegal Entry: A More Complicated Case
Illegal entry means you entered the U.S. without inspection or approval from a Customs and Border Protection (CBP) officer.
- Consequences:
- You cannot apply for a green card from within the U.S.
- If you’ve been unlawfully present for over 180 days, leaving the U.S. to apply for a green card triggers the re-entry bars.
- If you were deported and re-entered illegally, you could face a lifetime bar from the U.S.
- Possible Solutions:
If you entered illegally but left before accruing 180 days of unlawful presence, you may apply for a green card at the U.S. embassy or consulate in your home country.
Waivers of Inadmissibility: Overcoming Re-Entry Bars
If you face a re-entry bar due to unlawful presence, you may be able to apply for a waiver of inadmissibility. This waiver allows you to return to the U.S. sooner, but you must demonstrate extreme hardship to a qualifying relative, such as:
- A U.S. citizen or green card holder spouse.
- A parent who depends on you emotionally, physically, or financially.
To apply for the waiver:
- You need to prove why your family cannot relocate to your home country.
- Highlight how their life would be severely impacted without you in the U.S.
Thanks to updated policies, you can now apply for a provisional waiver while still in the U.S., reducing the time you need to stay abroad.
Travel During the Green Card Process
If you’re in the U.S. without legal status but are eligible to apply for a green card, travel outside the U.S. is risky. You could be barred from re-entry if:
- You’ve accrued unlawful presence.
- Your green card application hasn’t been fully approved.
For eligible applicants, a travel permit (Advance Parole) may allow temporary travel during the green card process. However, immigration policies can change, so it’s safer to avoid leaving the U.S. until your green card is approved.
Frequently Asked Questions
What’s the Difference Between Overstay and Illegal Entry?
- Overstay: You entered legally with a visa or through the Visa Waiver Program but stayed too long.
- Illegal Entry: You entered the U.S. without inspection or permission.
Can I Still Get a Green Card If I Overstayed My Visa?
Yes, particularly if you are married to a U.S. citizen. However, your immigration history will be reviewed carefully.
What Are the Re-Entry Bars?
The three-year and ten-year bars prevent you from re-entering the U.S. based on the length of your unlawful presence:
- 180–365 days: 3-year bar.
- Over a year: 10-year bar.
What Is a Waiver of Inadmissibility?
This is a request to waive the penalties of immigration violations by showing that your U.S. citizen or green card holder relative would face extreme hardship without you.
Navigating the green card process after immigration violations can be challenging, but it’s not impossible. At Law and Visas, we can guide you every step of the way, helping you apply for waivers, green cards, and ensuring your application is as strong as possible.
Let’s plan your immigration journey together—reach out to Law and Visas today!
