Green Cards and Prior Immigration Violations:
Overstays, Unlawful Presence, and Illegal Entry
When processing green card applications, U.S. Citizenship and Immigration Services (USCIS) is very strict about any past violations of U.S. immigration laws. You may experience serious problems obtaining a green card if you’ve ever overstayed a visa (or stayed longer than 90 days after entering under the Visa Waiver Program), if you’ve ever been in the United States without legal immigration status, or if you’ve ever entered the United States illegally.
If you’ve been in the United States without legal immigration status, you could be forbidden from applying for a green card from within the United States and/or barred from re-entering the United States if you leave. The length of time you would be required to remain outside of the United States depends on how long you had no legal immigration status.
If you’re in this situation, you might be able to apply for a “waiver of inadmissibility.” Waivers require proving that your spouse would experience extreme hardship if you were not allowed to be in the United States together. Obtaining a waiver is not easy, but it’s not impossible either, and it’s important to present a compelling argument.
For more details about each of these possibilities, read on…
Understanding the Terms
There are three major categories of immigration violations that can cause problems when you apply for a green card:
- An overstay is when you entered the United States with a visa (or through the Visa Waiver Program), but you stayed longer than you were allowed to. (The Visa Waiver Program allows citizens of some countries to visit the United States without a visa for up to 90 days.)
- If you overstay your visa, you start to accrue unlawful presence. Unlawful presence means that you are in the United States but you don’t have any immigration status. This is sometimes called being in the United States “illegally” or being “undocumented.”
- Entering the United States without going through inspection is considered illegal entry. “Inspection,” in the immigration context, means that a Customs and Border Patrol (CBP) officer checked your passport and allowed you to enter the United States.
Immigration Consequences of Overstays
If you enter the United States with a valid visa (for example, a tourist or student visa) and overstay by less than 180 days, your visa will be considered void and you’ll need to get a new visa in your home country if you want to come back to the United States.
In this scenario, you are still eligible to come back to the United States at any time, as long as you get the required visa to do so. However, obtaining a new visa after overstaying on a previous visit will be more challenging—because you’ll need to prove to the consular officer that you will not overstay your visa again.
If you enter the United States using the Visa Waiver Program and stay for longer than 90 days, you won’t be eligible to use the Visa Waiver Program in the future, even though you’re from one of the eligible countries. If you wanted to return to the United States, you would need to apply for a visa at the local U.S. embassy or consulate.
If you have more than 180 days of unlawful presence, meaning you overstayed your visa by 181 days or more, you will be barred from returning to the United States for a certain amount of time. If you were unlawfully present for between 180 and 365 days, you will be barred from entering the United States for three years. If you were unlawfully present in the United States for over a year, you’ll be barred from returning for 10 years. (These are often call the “three- and ten-year bars” or just the “re-entry bars.”)
However, if you overstayed after entering the United States with a valid visa or under the Visa Waiver Program, then as long as you are married to a U.S. citizen, you can still apply for a marriage-based green card without leaving the United States. (For more information on this process, see Start to Finish: Green Cards for Spouses of U.S. Citizens Living in the United States.)
Travel Considerations for Spouses of U.S. Citizens
Spouses of U.S. citizens are one of the only categories of immigrants who are allowed to apply for (and receive) a green card without leaving the United States, even if they do not currently have a legal immigration status. They must have entered the United States legally, however.
If you are in this category, and want to travel outside the United States while your green card application is being processed, you may apply for a travel permit (officially called an Advance Parole Travel Document), and you won’t be subject to the re-entry bars for unlawful presence even if you would otherwise have been unable to re-enter the United States. It’s extremely important to understand, however, that this policy (based on a 2012 decision of the Board of Immigration Appeals) is not uniformly applied around the country and could change at any time (including when you happen to be out of the United States). If you’ve been in the United States without legal status, it’s safest to wait until you’ve received your green card before traveling outside the United States.
Immigration Consequences of Illegal Entry
The consequences of illegal entry are more complicated. If you entered the United States illegally (as opposed to overstaying), you cannot apply for a green card from inside the United States. But it can be perilous to leave the United States to apply for a green card from abroad—as described above, if you have more than 180 days of unlawful presence, this will trigger a re-entry bar of 3 or 10 years.
If, however, you entered the United States illegally but then left before staying 180 days, you would not face a re-entry bar and could apply for a green card through the U.S. embassy or consulate in your home country.
It’s also important to understand that if you were deported from the United States and then re-entered illegally, you would be barred from entering the United States for life.
Waivers of Inadmissibility
As described above, if you entered the United States illegally and have more than 180 days of unlawful presence, you will need to leave the United States to apply for a green card at a U.S. embassy or consulate. In order to avoid the three- and ten-year re-entry bars, you’ll need to apply for a “waiver of inadmissibility” to return to the United States.
To qualify for a waiver, you will have to show that your “qualifying relative” will experience “extreme hardship” if you are not allowed to live in the United States. For this particular type of waiver—called an “unlawful presence waiver”—a qualifying relative can be a spouse or a parent who is either a U.S. citizen or U.S. green card holder. (You can include information about how the hardship faced by your children would impact your spouse, but children by themselves are not considered qualifying relatives for unlawful presence waivers.)
When preparing your waiver application, you have to make the case that the hardship your spouse would experience is “extreme.” There has to be a strong reason that you and your spouse can’t live together in your home country, as well as a compelling argument that your spouse will suffer if you aren’t allowed to live in the United States.
In the past, you would have had to leave the United States first and apply for a waiver at the U.S. embassy or consulate at the same time you applied for a green card. Today, however, you can apply for a “provisional waiver” before you leave the United States. This both shortens the amount of time that you have to spend outside of the United States and gives you some measure of confidence that your waiver will be approved.
USCIS policy regarding waivers has changed substantially in recent years. Before August 2016, you had to be the spouse of a U.S. citizen to get a provisional waiver before leaving the United States, but now spouses of green card holders are treated the same as spouses of U.S. citizens. In addition, waivers were previously only available for people applying for a marriage-based green card, but now anyone applying for a green card can apply for a provisional waiver. This expansion in the number of people eligible for provisional unlawful presence waivers has increased the length of time it takes for USCIS to process them, to as long as 8 months. Make sure you have the latest information from USCIS about provisional waiver eligibility.
Overstaying your visa, remaining in the United States without immigration status, and entering the United States illegally can complicate your marriage-based green card application. As described above, however, past immigration violations may not necessarily prevent you from getting a marriage-based green card.
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