Immigraton Corner | If I overstayed my visa, can I get a green card?

Dear Mrs Walker-Huntington,

If you have overstayed on your visa for more than a year and voluntarily return to your home country, could you marry a US citizen and receive a fiancé visa or a green card?

KH

Dear KH,

When someone overstays their period of admission to the United States and leaves the US, depending on how long they overstayed, they can face a mandatory bar to returning. Overstaying an entry in America is accruing unlawful presence and is a ground of inadmissibility to return. You can overstay your period of admission and not overstay your visa. When you are admitted or paroled into the United States you are given a period of time to stay in the United States – when you stay beyond that period, you accrue unlawful presence, even if your visa is still valid. There are a few unique exceptions to the unlawful presence rule.

If the overstay is for less than six months, it is up to the discretion of the Customs and Border Protection officer or the consular officer (when applying for a visa renewal) if the person would be allowed back into the United States as a non-immigrant. If the person applies to return as a permanent resident, the under six months overstay would not be an issue.

However, if a non-immigrant overstays their permitted time in America for six months or more, they face a mandatory bar to returning to America and will require a waiver if they are to return before the expiration of the bar. Overstaying for six months to a year results in a mandatory three-year bar; and an overstay of a year or more is a mandatory 10-year bar.

The mandatory bar for the unlawful presence can be waived if the intending immigrant has a qualifying relative – United States or permanent resident spouse, son or daughter who can demonstrate that they are experiencing extreme hardship in America.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com