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Your visa has expired and you have stayed in the United States: Can you still get a Green Card?

245333_british_passports.jpgYes, you can if you meet certain requirements. First, your last entry into the United States must have been lawful. Lawful Admission means a lawful entry into the United States after inspection and authorization by an immigration officer. If you entered lawfully and your visa then expired, this does not prevent you from adjusting your status to that of a lawful permanent resident. This is true regardless of how long you have overstayed your visit. Second, you must be married to a U.S. Citizen. The spouse of a U.S. Citizen is an immediate relative that gets priority in processing. For my Texas clients, priority processing time means they receive their green card in approximately three and a half months.

Adjustment of Status based on marriage has several requirements. One of them is that you have the burden of proof in showing that the marriage is a legitimate one and not entered into for purposes of obtaining immigration benefits. Marrying for immigration benefits constitutes visa fraud and carries serious criminal penalties and fines.

Adjustment of Status also carries the requirement of submitting an Affidavit of Support. An Affidavit of Support is a legal contract between you (the Petitioner), the intending immigrant (the Beneficiary) and the US Government. It ensures that the visa applicant has adequate means of financial support and is unlikely to become a public charge after entering the US.

It is possible to file for a work and travel permit for the beneficiary to use while waiting for the green card so he or she can work or travel outside the US while the Adjustment of Status petition is being processed. Doing so may save more than $700 in filing fees compared to filing for these at a later time.

Before a green card can be approved based on marriage to a U.S. citizen, a representative from the U.S. Citizenship and Immigration Services (USCIS) will conduct an in-person interview in the applicant’s jurisdiction.


Austin immigration attorney Daniella Lyttle has helped many couples through the marriage-based adjustment of status process. Call us at (512) 329-2770 to set up an appointment with an immigration attorney today.