Several factors are at play when deciding to file Form I-130 after a visa overstay. A visa overstay doesn’t affect one’s eligibility for the purpose of filing Form I-130, Petition for Alien Relative. However, a visa overstay can drastically affect the actual application for permanent residence (green card). For some cases the overstay can easily be overcome. In other cases, the overstay can result in a bar that prevents the intending immigrant from entering the United States for many years.
Visa Overstay and Consequences
First, it’s helpful to explain the term “overstay” and how it affects foreign nationals. When a foreign national remains in the United States longer than the period of authorized stay, it’s called overstaying a visa.
Your relative’s visa may be valid for several years. However, the visa does not govern the length of his or her authorized stay in the U.S. — it merely allows your relative to enter the United States during that time period. Instead, your relative’s Form I-94 governs his or her authorized stay in the United States. The date on your relative’s Form I-94 is the last day he or she is permitted to remain in the U.S., and it may not be valid for as long as the visa is valid. Your relative must depart the U.S. by the date on the Form I-94, or he/she will have overstayed the visa.
Overstaying a visa can have significant, long-term consequences. Please be advised that your relative will trigger a bar to re-entry if he/she meets the following criteria:
- Persons who have accumulated 180 days or more of unlawful presence, and have then leave the country, cannot return to the United States for 3 years.
- Persons who have accumulated one year or more of unlawful presence, and have then leave the country, cannot return to the United States for 10 years.
These bars to reentry will severely damage your relative’s attempts to obtain a green card.
Immediate Relative Privileges
Next, it’s important to understand the type of relative you have. If the intending immigrant is the spouse, unmarried child (under age 21) or parent of a U.S. citizen, he or she is classified as an immediate relative. This is significant because immigration law provides special considerations for immediate relatives. Any other relationship is considered family preference category. A family preference relative with any type of visa overstay will have difficultly obtaining a green card.
As mentioned, immediate relatives have special privileges under immigration law. An overstay can be forgiven if the individual applies for a green card from within in the United States.
Consular Processing vs Adjustment of Status
Immediate relatives do have special privileges but aren’t immune from problems related to a visa overstay. Anyone that overstays a visa for a period of over 180 days and then departs the United States is subject to a bar. Once the foreign national departs the U.S., the bar is triggered.
For this reason, it generally doesn’t make sense for an immediate relative with an overstay to use consular processing. This is the process of applying for an immigrant visa (green card) at a U.S. embassy or consulate in another country. The immigrant visa will likely be denied.
On the other hand, an immediate relative with a visa overstay may be able to adjust status. This is the process of applying for permanent residence (green card) from inside the United States. An immediate relative – regardless of the length of the overstay – may generally adjust status to permanent resident.
If your relative is an immediate relative (spouse, unmarried minor child, or parent of a U.S. citizen) who is currently in the United States with a visa overstay, you can generally file Form I-130 as long it is filed concurrently with Form I-485, Application to Adjust Status. In fact, this adjustment of status package will include a few other forms.
An immediate relative who is presently in the United States may generally adjust status in all of the following situations:
- He/she has never overstayed a visa; or
- On a previous visit to the United States, he/she departed within 180 days of the Admit Until Date on his/her I-94. In other words, he/she never departed the U.S. after an overstay of 180 days or longer; or
- On his/her current visit, he/she has overstayed a visa (regardless of days) but has not departed the United States.
If your relative has ever overstayed a visa for 180 days or more and then departed the United States, we recommend that he/she speak to an immigration attorney before filing any USCIS form. Likewise, your relative should speak to an attorney if he/she was previously barred from reentering the U.S. for any reason.