By Brian Figeroux, Esq.
U.S. immigration law provides a pathway for U.S. citizens to petition for their foreign-born spouses to adjust their immigration status and obtain lawful permanent residency, commonly known as a Green Card. However, this process can become more complex when the foreign spouse has entered the U.S. on a temporary visitor visa (such as a B-2 tourist visa) and has overstayed the time allowed on their I-94, the Arrival/Departure Record issued by U.S. Customs and Border Protection (CBP). While overstaying a visa can lead to various legal complications, there is still a pathway to adjust status to a Green Card for spouses of U.S. citizens, even for those who have overstayed their visa. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.
This article will provide a detailed analysis of the process for a U.S. citizen to simultaneously petition for and adjust the status of their spouse who has overstayed their visitor visa. It will cover all the steps involved, from filing the necessary forms to attending interviews, as well as highlighting potential challenges and the importance of seeking legal assistance.
Overstay and the Immediate Relative Exemption
U.S. immigration law is strict when it comes to visa overstays. A visa overstay means that the individual remained in the country beyond the expiration date on their I-94 form, which tracks the duration of their permitted stay. Overstaying a visa typically renders an individual “out of status” and may subject them to penalties, including a ban on re-entering the U.S. However, there is a crucial exception for individuals who are immediate relatives of U.S. citizens, including spouses.
The U.S. government allows spouses of U.S. citizens to adjust their immigration status even if they have overstayed their visa, as long as they entered the country legally (i.e., with inspection and admission at a port of entry). This means that the foreign spouse can apply for a Green Card without leaving the U.S., despite their overstay. This is a significant benefit because leaving the U.S. after overstaying a visa could trigger a 3- or 10-year re-entry bar, depending on how long they were unlawfully present.
Simultaneous Petition and Adjustment of Status
When the U.S. citizen spouse wants to help their foreign-born spouse who has overstayed their visa obtain a Green Card, they can take advantage of the process known as concurrent filing. This means that the U.S. citizen spouse can submit a petition (Form I-130) for their foreign spouse at the same time that the foreign spouse files their adjustment of status application (Form I-485). Concurrent filing can significantly expedite the process, as it eliminates the waiting period between the approval of the petition and the adjustment of status application.
Here is a step-by-step breakdown of the process:
Step 1: Filing Form I-130 (Petition for Alien Relative)
The first step in the process is for the U.S. citizen spouse to file Form I-130, the Petition for Alien Relative. This form is used to establish the existence of a valid relationship between the U.S. citizen and the foreign-born spouse. Essentially, it is a request for the U.S. Citizenship and Immigration Services (USCIS) to recognize that the marriage is legitimate and should entitle the foreign spouse to apply for a Green Card.
Required Documentation for I-130:
- Proof of U.S. citizenship of the petitioner (U.S. citizen spouse), such as a U.S. passport, birth certificate, or naturalization certificate.
- Evidence of a bona fide marriage, including a marriage certificate, joint financial documents (such as bank account statements or lease agreements), photos of the couple together, and affidavits from friends and family confirming the legitimacy of the relationship.
- Proof of termination of any previous marriages (if applicable), such as divorce decrees or death certificates.
- The filing fee for Form I-130 (currently $535).
Step 2: Filing Form I-485 (Application to Adjust Status)
At the same time that Form I-130 is submitted, the foreign-born spouse can file Form I-485, Application to Register Permanent Residence or Adjust Status. This form is used to apply for a Green Card and is submitted directly to USCIS.
Required Documentation for I-485:
- Completed Form I-485.
- Copy of the I-94 Arrival/Departure Record showing legal entry into the U.S.
- Two passport-sized photos of the foreign-born spouse.
- Medical examination and vaccination records (Form I-693) completed by a USCIS-designated civil surgeon.
- Copy of the marriage certificate.
- Affidavit of Support (Form I-864) from the U.S. citizen spouse, which is required to demonstrate that the petitioner can financially support their foreign-born spouse and prevent them from becoming a public charge.
- The filing fee for Form I-485 (currently $1,225, including biometrics).
By filing both forms simultaneously, the couple initiates the petition and the adjustment of status process at the same time, reducing the overall waiting period.
Step 3: Form I-765 (Application for Employment Authorization) and Form I-131 (Application for Advance Parole)
Along with Form I-485, the foreign-born spouse can also submit:
- Form I-765, Application for Employment Authorization, which allows them to work legally in the U.S. while the Green Card application is pending.
- Form I-131, Application for Travel Document (Advance Parole), which allows them to travel outside the U.S. and return without abandoning their adjustment of status application.
These applications are optional but can be highly beneficial, especially since the processing times for the Green Card application can be lengthy.
Step 4: Biometrics Appointment
After submitting the necessary forms, USCIS will schedule a biometrics appointment for the foreign-born spouse. During this appointment, USCIS will take their fingerprints, photograph, and signature, which will be used to run a background check and verify their identity. The appointment is typically brief and is a routine part of the Green Card process.
Step 5: USCIS Interview
After processing the I-130 and I-485 forms, USCIS will schedule an interview for the couple. Both spouses are required to attend this interview, which takes place at a local USCIS office. The interview’s primary purpose is to determine the legitimacy of the marriage and to ensure that it is not fraudulent or solely for immigration benefits.
During the interview, the USCIS officer may ask questions about:
- How the couple met.
- The details of their wedding.
- Their living arrangements.
- Shared responsibilities (e.g., finances, children, household duties).
- Future plans together.
It is essential that the couple prepares for this interview and brings all relevant documentation to support their relationship, such as joint bank statements, lease agreements, photos, and any other evidence that proves the marriage is genuine.
Step 6: Approval of Green Card
If USCIS is satisfied with the legitimacy of the marriage and all other aspects of the application are in order, they will approve the foreign-born spouse’s adjustment of status application, and the foreign spouse will receive a Green Card.
Conditional Green Card for Marriages Less Than Two Years
If the couple has been married for less than two years at the time the Green Card is issued, the foreign-born spouse will receive a conditional Green Card that is valid for two years. To remove the conditions on the Green Card and obtain a permanent 10-year Green Card, the couple must file Form I-751, Petition to Remove Conditions on Residence, within the 90-day period before the conditional Green Card expires.
Challenges and Legal Risks
While the process may appear straightforward, there are several risks and challenges that could arise, particularly in cases involving visa overstays. These include:
- Public Charge Concerns: USCIS may deny the Green Card application if they believe the foreign spouse is likely to become a public charge, meaning they may rely on government benefits. The Affidavit of Support (Form I-864) is crucial in addressing this issue, as it demonstrates that the U.S. citizen spouse has sufficient income to support the foreign spouse.
- Misrepresentation or Fraud Concerns: If the foreign spouse entered the U.S. on a visitor visa with the intention of staying permanently, USCIS may accuse them of visa fraud. This is a serious concern, as misrepresentation at the time of entry could result in the denial of the adjustment of status application. It is important to provide evidence that the overstay was unintentional and that the foreign spouse did not plan to remain in the U.S. permanently when they entered on a temporary visa.
- Unlawful Presence: Leaving the U.S. during the adjustment of status process without an approved travel document (Advance Parole) can trigger the 3- or 10-year bar on re-entry if the foreign spouse overstayed their visa. To avoid this, the foreign spouse should not leave the U.S. until they receive Advance Parole or their Green Card.
Why Legal Assistance is Essential
Navigating the immigration process is complicated, especially when visa overstays are involved. There are numerous forms to file, deadlines to meet, and documentation to provide. Even a small mistake can result in delays, denials, or, in the worst-case scenario, removal proceedings. This is why legal representation is highly recommended.
An experienced immigration attorney can guide couples through the process, ensuring that all forms are properly completed, that deadlines are met, and that the necessary evidence is provided. An attorney can also help couples prepare for their USCIS interview and handle any complications that arise during the process, such as requests for additional evidence (RFEs) or issues related to the overstay.
Conclusion
For married couples in which one spouse has overstayed their visitor visa in the U.S., the path to a Green Card is possible but requires careful navigation. Concurrent filing of Form I-130 and Form I-485 allows the foreign spouse to adjust their status without leaving the U.S., even if they have overstayed their visa. While the process offers significant advantages, it also comes with potential risks, making it critical to seek legal assistance.
If you are in this situation, seeking the help of a qualified immigration attorney is essential to ensuring a smooth and successful outcome. Legal representation can make the difference between a swift resolution and a prolonged, stressful immigration ordeal.
The Law Firm of Figeroux & Associates, which has over 25 years practicing immigration law, can help you navigate the process and avoid common pitfalls. To schedule an appointment, visit www.askthelawyer.us or call 855-768-8845. The lawyer you hire does make a difference!