Imagine this scenario: You arrived in the United States on a temporary foreign worker Visa. You’re excited to explore new opportunities to build a better life. However, time flew by, and before you knew it, your Visa had expired. It leaves you in an uncertain and stressful situation—the fear of consequences for overstaying looms large. However, there is a glimmer of hope – a Green Card through an adjustment of status application (AOS). In this article, you will navigate the complexities of Visa overstays and explore how the adjustment of status can be your lifeline. Find out how it provides a potential solution to rectify your immigration status and how a lawyer can help you with it.
Understanding An Overstayed VisaHaving an overstayed Visa in the United States refers to a situation where an individual remains in the country beyond the expiration date specified on their Visa document. Doing so violates the terms and conditions of their authorized stay. Visa overstays can lead to various legal consequences, including deportation, bans on reentry, and difficulties with future Visa applications. Here are several instances of Visa overstays in the United States:
- Tourist or Visitor Visa Overstay: When someone enters the United States on a tourist (B-2) or visitor (B-1) Visa and stays beyond the permitted duration, usually six months.
- Student Visa Overstay: Individuals with Student Visas (F-1 or M-1) must maintain full-time student status and adhere to specific academic timelines. An overstaying student might fail to attend classes or complete their program within the authorized duration.
- Work Visa Overstay: Those who come to the United States on work-related Visas, such as H-1B, L-1, or O-1, are expected to leave when their employment or work-related activities end. Overstaying in this context often occurs when the Visa holder continues working or residing in the country after their Visa expires.
Consequences Of Overstaying A VisaOverstaying a Visa in the United States can result in various consequences, ranging from administrative penalties to legal actions. They can significantly impact an individual’s immigration status, future travel, and even their ability to remain in the country.
DeportationThis violation makes an individual subject to removal (deportation) proceedings. U.S. Immigration and Customs Enforcement (ICE) can detain and initiate removal proceedings against individuals who are found to have overstayed their isas.
Inadmissibility BarWhen you overstay a Visa, you can trigger an inadmissibility bar. It means you may be barred from returning to the United States for a specific period or even permanently. It depends on the length of the overstay.
No Adjustment Of StatusIf you overstay your visa, you may be ineligible to apply for adjustment of status to a lawful permanent resident (Green Card holder) in the United States. It may be the case even if you are otherwise eligible through family, employment, or other categories.
Loss Of Visa BenefitsOverstaying a Visa can result in losing any associated benefits. For example, if you overstay a Student Visa, you may lose your ability to work on Optional Practical Training (OPT). It is also possible that you can’t apply for future Student Visas.
Loss Of Employment AuthorizationIf you have a Work Visa and overstay it, you lose your legal authorization to work in the United States. This can result in the termination of your employment and loss of income. It’s important to note that the specific consequences of overstaying a Visa can vary depending on factors. It usually depends on the length of the overstay, the individual’s immigration history, and the circumstances surrounding it. Given the serious nature of this matter, individuals can explore options for rectifying their status. They may apply for extensions, pursue waivers, and other options.
Learn Your OptionsYou can explore some potential alternatives if you are in a situation where you overstayed your Visa. A skilled immigration attorney can guide you and help you understand what you can do to remain in the United States.
Voluntary DepartureIf you realize you have overstayed your Visa, you can leave the United States voluntarily. Doing so before being subject to removal proceedings can have a less severe impact on your immigration record and future eligibility for Visas.
Extension Or Change Of StatusIn some cases, you may be eligible to apply for an extension of your current Visa. You can also change your Visa status while still in the United States. These options are often available for individuals who can demonstrate a legitimate reason for their extended stay. Valid reasons include medical conditions, family emergencies, or academic program extensions.
Adjustment Of StatusSuppose you have an immediate family member who is a U.S. citizen or lawful permanent resident willing to sponsor you. You may be eligible for adjustment of status to become a lawful permanent resident, even if you have overstayed your Visa. This option can be complex and may require a waiver if you have accrued unlawful presence.
Seek A WaiverSome individuals with overstayed Visas may be eligible for waivers that can forgive certain violations and allow them to pursue legal immigration options. Waivers are typically available for certain family-sponsored and employment-based categories. It’s important to emphasize that the success of these options varies depending on individual circumstances and immigration history. Overstaying a Visa is a complex issue, and the consequences can be severe. However, one of the options you can explore is the adjustment of status. You may wonder, what does it entail? What is the process?
Apply For A Green Card Adjustment Of StatusWhen you are an immediate relative of a U.S. citizen and you entered the United States legally, AOS can be a viable pathway to obtain permanent residency. Close relatives, including spouses, parents, and unmarried children under 21 years of age of U.S. citizens, enjoy certain advantages when adjusting status despite an overstay. Here’s how the process generally works:
- To apply for AOS, you must first establish that you are an immediate relative of a U.S. citizen. This relationship is the foundation for your eligibility to pursue adjustment of status.
- The U.S. citizen family member must file an I-130 Petition for Alien Relatives on your behalf. This petition establishes the qualifying family relationship.
- Once the I-130 petition is approved, you can file Form I-485, Application to Register Permanent Residence or Adjust Status.
- After filing Form I-485, you will likely be scheduled for biometrics (fingerprinting) and an interview with the U.S. Citizenship and Immigration Services (USCIS).
- You must also submit an Affidavit of Support (Form I-864) from the U.S. citizen petitioner or another qualified sponsor. This document demonstrates that you will not become a public charge. It will also indicate that you have sufficient financial support to meet the requirements for a Green Card application.
- USCIS will assess your admissibility, considering factors such as criminal history, security concerns, and immigration violations, including overstays. Then, they will review your application and conduct background checks. If everything is in order and you meet all the eligibility criteria, you may receive a lawful permanent resident status.