Applying for a Green Card After a Visa Overstay: Forgiveness for Immediate Relatives

A visa overstay happens when you stay in the United States longer than the period allowed on your Form I-94 Arrival/Departure Record. Your visa lets you travel to a U.S. port of entry. Your Form I-94 sets the date you must leave.

Many people check the wrong date. A visa may stay valid for several years, but the "admit until" date on your I-94 is the day your authorized stay ends. If you remain past that date, you have overstayed, even if the visa in your passport looks current.

In fact, you can also lose your status by ending the activity your visa was meant for. This is true for any nonimmigrant visa, even before your "admit until" date. A student who drops out, or a worker who quits the job behind their visa, falls out of status right away. If you are unsure of your date, you can look up your record on the CBP I-94 website.

Leaving the country after a visa overstay can bar you from returning for years. In 1996, Congress created two unlawful presence penalties that USCIS still applies today. Unlawful presence is time spent in the United States after your authorized stay ends.

The bars work in two tiers:

• 180 days or more of unlawful presence, followed by departure, creates a 3-year bar to reentry.
• One year or more of unlawful presence, followed by departure, creates a 10-year bar to reentry.

The key point is that these bars are triggered by leaving. A waiver is sometimes available through the unlawful presence waiver, but it requires proof of extreme hardship to a qualifying relative and generally requires an attorney's help. For many families, avoiding the departure is the better strategy.

Adjustment of status is the process of applying for a green card without leaving the United States. Because you never depart, you do not trigger the 3- or 10-year bars described above. That single fact makes adjustment of status the preferred path to a green card after a visa overstay.

The alternative is consular processing, which requires travel to a U.S. embassy abroad. For someone with significant unlawful presence, that trip can trigger a bar and a lengthy waiver process. Adjustment of status keeps the applicant in the country with their family while USCIS reviews the case.

Eligible applicants also file for a work permit and travel document in the same package, which helps them live and work normally while the green card is pending.

Immediate relatives remain eligible to adjust status by law, but three recent developments could affect how cases move through the system. These are policy shifts with potential impact, not automatic outcomes, and many immediate relatives continue to adjust successfully.

First, USCIS issued a policy memo in May 2026 (PM-602-0199) describing adjustment of status as a matter of discretion. Officers are directed to weigh the "totality of the circumstances" in each case. Immediate relatives are still eligible, but a long overstay may now carry more weight as a negative factor. This shift is explained in more detail on our post about the USCIS memo widening adjustment of status discretion.

Second, a denied application can lead to removal proceedings more readily than before. Under current guidance, USCIS may issue a Notice to Appear when it denies someone who lacks lawful status.

Finally, some applicants have reported that immigration officers questioned their overstay during the green card interview. These reports vary by location and are the subject of ongoing litigation. Because the situation is uneven, a case-by-case review matters more now than it used to.

Have an experienced attorney review your situation before you file after a visa overstay. This is the safest step given the recent policy changes, and it is especially important if you have a criminal record, a prior removal order, or an entry without inspection. A short consultation can confirm your eligibility and flag any risk.

There are several ways to find an immigration attorney for that review. An attorney can tell you whether adjustment of status is a sound choice for your specific facts.

Once you have confirmed that you can move forward, CitizenPath helps you prepare the Adjustment of Status Package accurately and affordably. The service checks your answers for common errors and provides filing instructions tailored to your case, so your application arrives complete.