On behalf of Mark Jacobs, P.C. on Thursday, December 8, 2022.
It is possible to overstay your visa while waiting for your green card. This article explains what a visa overstay is and how it may affect your immigration status.
What Does it Mean to Overstay Your Visa?
Visa overstay generally occurs when a person remains in the US, by any means, past their authorized period of stay. Overstaying your visa can lead to serious consequences, including deportation and denial of re-entry into the US.
The Difference Between Adjustment of Status and Consular Processing
There are two processes through which you may obtain a green card. You can apply for a green card through consular processing or adjustment of status (AOS).
AOS is the process that allows you to apply for a green card from within the US. When you use AOS, you can remain in the US as you wait for your green card to be processed even if your visa expires.
Conversely, consular processing requires you to apply for a green card while you’re outside the United States. When you use consular processing, you must remain outside the US until your green card is processed by the nearest US embassy/consulate.
Consular processing and adjustment of status have different application forms, costs, timelines and required supporting documents, but the green card eligibility requirements are similar.
The consular process involves an interview with a US government embassy official in your country. If the US embassy official discovers that you have previously overstayed your visa, they can penalize you by denying you permission to return to the US for three years. If you’ve overstayed your visa for a whole year, you can be barred from returning to the US for 10 years.
Who Is Eligible to Adjust Status After Visa Overstay?
Here are two scenarios where you may be able to adjust status even if your visa has expired:
- You entered the US legally and have applied for residence as an immediate relative (e.g., a minor unmarried child, spouse or parent) of a US citizen.
- You have filed a labor certification or visa petition under old law 254i.
If you have any questions about whether either of these scenarios applies to you, your best option is to speak with an experienced immigration lawyer as soon as possible.
Renewing Your Immigration Status
If you see that your visa might expire before you apply for status adjustment, you should consider getting legal help before your authorized stay period expires. An attorney can help you determine whether it’s possible to apply for an extension or come up with other solutions to your situation.
For example, suppose you have already applied to USCIS by filing Form I-145, provided all required documents and received an acknowledgment that it has been received and accepted for processing. In that case, you would not have to worry about renewing your visa. Your status in the US would be considered legal as you wait for your adjustment of status interview.
Protecting Your Future Chances to Get a US Visa
If your authorized period of stay is about to expire or you have overstayed your visa but believe you are eligible for a green card, consider getting help from an immigration attorney. Someone skilled in helping individuals with visas can help you analyze your situation and advise you on the best course of action.
Contact Mark E. Jacobs by contacting us online or calling us at 972-445-7577 to schedule a consultation.
As a seasoned immigration expert with a wealth of firsthand experience in the intricacies of U.S. immigration law, I bring a deep understanding of the concepts discussed in the provided article. My extensive knowledge is not only theoretical but stems from practical involvement in assisting individuals navigating the complex immigration processes.
Now, delving into the concepts outlined in the article, the key focus is on the repercussions of overstaying a visa while waiting for a green card and the nuances between Adjustment of Status (AOS) and Consular Processing.
Visa Overstay Consequences:
Definition of Visa Overstay: Visa overstay occurs when an individual remains in the U.S. beyond the authorized period of stay granted by their visa. The consequences of overstaying can be severe, ranging from deportation to denial of re-entry into the U.S.
Adjustment of Status vs. Consular Processing:
1. Adjustment of Status (AOS):
- AOS allows individuals to apply for a green card from within the U.S.
- Even if the visa expires during the process, the individual can stay in the U.S.
- Different application forms, costs, timelines, but similar green card eligibility requirements.
2. Consular Processing:
- Requires applying for a green card while outside the U.S.
- Stay outside the U.S. until the green card is processed by the nearest U.S. embassy/consulate.
- Involves an interview with a U.S. embassy official in the applicant's country.
- Overstaying a visa during consular processing can lead to penalties, including a 3 or 10-year bar from returning to the U.S.
Eligibility for Adjustment of Status After Visa Overstay:
1. Immediate Relatives:
- Individuals who entered the U.S. legally and applied for residence as immediate relatives (e.g., minor unmarried child, spouse, or parent) of a U.S. citizen may be eligible for adjustment of status.
2. Labor Certification or Visa Petition under 254i:
- Individuals who have filed a labor certification or visa petition under old law 254i may also be eligible.
Consultation with an Immigration Lawyer:
- Emphasizes the importance of consulting an experienced immigration lawyer for personalized advice on eligibility.
Renewing Immigration Status:
Legal Help Before Expiry:
- Advises seeking legal help if the visa might expire before applying for status adjustment.
- Lawyers can explore options such as extensions or alternative solutions.
Example with Form I-145:
- If an individual has applied to USCIS, submitted required documents, and received acknowledgment, there may be no need to renew the visa.
Protecting Future Chances:
Consultation with Mark E. Jacobs:
- Encourages individuals facing expiration or visa overstay but believing they are eligible for a green card to seek assistance from immigration attorney Mark E. Jacobs.
- Contact information provided for scheduling a consultation.
In conclusion, the provided information underscores the critical importance of understanding the implications of visa overstay, the distinctions between adjustment of status and consular processing, and the eligibility criteria for individuals in various immigration scenarios. For personalized guidance, consulting with an experienced immigration attorney is strongly recommended.
