Whenever the media features stories on illegal immigrants living in the US, the most familiar image that comes to many people’s minds is of migrants crossing the US/Mexico or Canadian border without inspection. Despite that, according to the Department of Homeland Security, in 2022, over 850,000 people who entered the US with valid visas did not depart when their statuses expired. Many people who find themselves in this situation may ask, how long can you overstay your visa in the USA? The fact is, if you remain in the US for even one day after your legal status expires, you will be considered an illegal alien. The only exception is if you had filed to have your status extended, changed, or adjusted before the expiration date on your I-94 card.
If you overstay your visa in the U.S., it can carry serious consequences as you will start accruing unlawful presence, beginning the day after your status expires. This will ultimately make it more challenging to adjust your status later. The consequences range from being barred from entering the U.S. for a certain number of years after you leave to possibly being removed from the US if you get caught. However, what happens when or if you overstay your visa and get married?
One of the main ways someone who entered the US on a nonimmigrant visa can adjust their status is by marrying a US citizen. Recent estimates show that over one million people living in the US without status are married to US citizens. If you are one of these people, there are some critical things to consider if you wish to adjust your status through marriage.
How Does a Legal Entry Differ From an Illegal Entry When It Comes to Marrying a Citizen?
Timing is everything. This is especially true when it comes to immigration issues in general and visa overstays in particular. If you overstay your visa by less than 180 days, you could face a 3-year bar from reentering the US, but if you overstay by more than 180 days, the bar may be up to 10 years. Given those terms, it is always advisable to leave the US before your nonimmigrant visa status expires. As it relates to marriage, undocumented applicants who are married to US citizens will need to return to their home country for an immigrant visa appointment. Unfortunately, they may find themselves barred from reentering the US if they do not have an approved waiver and their application is denied.
However, if you enter the US legally and marry a US citizen, you are generally in a better position to gain legal status in the US, even after overstaying your nonimmigrant visa. In that case, you may be able to adjust your status without having to leave the US. Still, bear in mind that being married to a US citizen does not automatically guarantee that you will be able to successfully adjust your status in the US since you must meet other qualifications, such as those listed below:
- You must not be considered inadmissible to the US at the time of filing
- You must not be deemed to have committed fraud through your marriage
- You must have an approved immigrant petition on your behalf
- An immigrant visa must be available to you as determined by your country of origin
When Did You Marry a US Citizen?
Some nonimmigrant visas, such as B1/B2 visas, do not allow for “dual intent.” This means that you are expected to remain in the US only for a temporary period without seeking to adjust your status to that of a permanent resident. If you marry a US citizen and file to adjust your status soon after arriving in the US on a visitor’s or other nonimmigrant visa, the USCIS may scrutinize your application more carefully to ensure that you are not engaging in a fraudulent marriage. The sooner you marry and file an application after your arrival, the more likely you are to raise a red flag.
You will need to provide sufficient proof to the USCIS that your marriage is real and bona fide, not merely a tactic to obtain a Green Card. When you and your spouse attend your immigrant visa interview, the officer will ask questions to determine whether you are committing marriage fraud. If your marriage is genuine, be prepared to prove it to the officer. You will likely have to explain how, where, and when you met and show evidence of your life together. One exception to the timing issue is the nonimmigrant K-1 fiancé visa, which requires the holder to marry their partner within 90 days of arriving in the US. You may be better off applying for this type of visa if you are engaged to a US citizen.
What Steps Should You Take if You Overstay Your Visa and Marry a US Citizen?
For people who find themselves wondering, what happens if I overstay my visa and marry a US citizen? Are there steps I can take to fix my status? Yes, there are steps you should take to begin adjusting your status if you overstay your visa.
- Your spouse should file an I-130 immigrant petition on your behalf
- You should include an I-485 adjustment of status application if the visa numbers are current for your country of origin
- You should gather documents that help prove the legitimacy of your marriage, including:
- Copies of leases or mortgage documents showing both your names
- Joint bank statements
- Insurance documents showing both your names
- Proof of shared bills and expenses
- Proof of shared assets
- Photos of you and your spouse with friends and relatives
Seek the Help of an Immigration Professional!
Determining what could happen if you overstay your visa can be confusing. If you are asking yourself, can I overstay my visa in the USA? The answer is it is never a good idea. Overstaying your visa can bring undesirable and sometimes disastrous consequences, including deportation and a multi-year ban from entering the US. This can cause extreme hardship, especially if it results in separation from a spouse and dependents. Even if you marry a US citizen after overstaying your visa, proving the legitimacy of your marriage may be more challenging. Since you will be out of status, immigration officers may regard your case with more skepticism than if you had married while in legitimate status. An immigration attorney can be your best ally when it comes to determining what next steps to take if you marry a US citizen after falling out of status. Should you find yourself in such a position, our attorneys at US-ILC are here to help!
