Will My Visa Overstay Be Waived If I Marry a U.S. Citizen?

If you are a foreign citizen who is in the United States without permission, having overstayed the time permitted under your visa (as shown on your I-94), you can potentially cure the problem if you enter into a bona fide (real) marriage with a U.S. citizen and then apply for adjustment of status (lawful residence, otherwise known as a green card).

There are, however three major cautions you should be aware of:

• If you used the nonimmigrant visa specifically with the idea of entering the United States and getting a green card through marriage, you might be accused of visa fraud and denied the green card as a result.
• If instead of adjusting status (a procedure in which you complete all the application paperwork and attend your green card interview in the United States), you leave the United States, perhaps intending to get your green card through what's called consular processing, you might be found inadmissible (depending on the length of your unlawful U.S. stay), and then have to submit a waiver request in order to return.
• If you originally entered the U.S. on a K-1 fiancé visa, which was sponsored by a different U.S. citizen than the one you now plan to marry, you cannot stay in the U.S. to adjust status, but would have to leave and attempt consular processing.

Visa Fraud Problems Related to Intentions Upon U.S. Entry

What type of visa did you use to enter the United States, and how long ago did you get that visa? If, for example, you got an F-1 student visa or H-1B worker visa several years ago, complied with the terms of that visa, and happened to meet your spouse while in the United States, you should be fine—no one is likely to accuse you of misusing the visa for a purpose other than its intended one.

But what if, for example, you have been dating your new spouse for quite some time, and a few months ago picked up a B-2 visitor (tourist) visa, bought a wedding ring, and then arrived in the U.S. in order to get married and apply for a U.S. green card? That, according to the immigration authorities, would be a misuse of the B-2 tourist visa. You weren't planning to be a mere tourist, you were planning to immigrate to the United States through marriage. You could be denied the green card on that basis, though there is a waiver you can potentially apply for.

Talk to an attorney for a full evaluation of such a case, and about the possibilities of applying for a waiver of inadmissibility.

Adjustment of Status Versus Consular Processing

A foreign citizen who entered the United States with official permission (on a visa, the visa waiver program (VWP), or something similar), and who then marries a U.S. citizen, may file for a green card using the procedure known as adjustment of status, based on being an immediate relative of a U.S. citizen.

It doesn't matter, in this case, that you overstayed the time permitted on your I-94. If you can manage to avoid getting picked up by U.S. immigration authorities until the day you submit your adjustment of status application, then your subsequent stay in the United States will be lawful, and should be able to get your green card here (unless there are other problems with your application or eligibility).

(Note that a foreign citizen who entered the U.S. illegally is not usually permitted to file for adjustment of status. Their only choice is consular processing, with the associated inadmissibility problems potentially barring their return for many years.)

What's so special about adjusting status? It protects you from the 3- and 10-year inadmissibility bars that are applied to people who have stayed in the U.S. unlawfully for 180 days or more and who then left. Only departure from the United States and attempted return triggers this bar.

If you were to leave the U.S. after an unlawful stay of 180 days or more, and then attempt to apply for your green card through a U.S. consulate, the consular officer who interviews you about your application might ask to see proof of your location after the time your U.S. permitted stay ran out. For details on this process, see What Happens During Consular Processing?

If the consulate becomes aware of your unlawful stay in the United States, you could possibly apply for a waiver (legal forgiveness), but you'd have to show that refusing to admit you as a U.S. resident would result in extreme hardship to your U.S. citizen or lawfully resident spouse or parent. In order to prove extreme hardship, you must provide evidence of hardship with respect to factors such as health, finances, education, personal considerations, and the like. This requires attaching a great deal of documentary evidence to the waiver application, and can be difficult to prove.

Entry on a K-1 Fiancé Visa With Subsequent Marriage to Different U.S. Citizen Petitioner

There is a major exception to the rule allowing immediate relatives of U.S. citizens who entered the U.S. legally to apply to adjust status in the United States. It doesn't work if your entry to the United States was on a K-1 fiancé visa, but you ended up not marrying the U.S. citizen fiancé who petitioned you.

Marriage to a different U.S. citizen might still allow you to get a green card someday, but you will have to leave the United States first. The U.S. citizen would then have to file an I-130 petition with USCIS on your behalf, and you would need to do your application and interview through a U.S. consulate in your home country. Watch out for the inadmissibility bars if you stayed unlawfully in the U.S. for six months or more.

See a Lawyer

An experienced immigration attorney can help you confirm your eligibility to adjust status in the United States, and can prepare the paperwork and otherwise advise you on the best strategy for obtaining a U.S. green card based on marriage.