Case Study 4: Marriage Green Card While Overstaying Visa
A foreign national arrives in the United States as a tourist and overstays his visa by several years. He lives with family in the U.S. and works odd jobs to support himself. He meets and eventually marries a woman who is a U.S. citizen in Washington State. They have two children.
The foreign national wants to file for his green card and work legally but is concern that he will not be able to due to the overstay. He also wants to travel to his home country to see family that he has not seen for quite some time. The U.S citizen wife would also like to sponsor him for an immigrant visa but is afraid that her foreign national husband would have to leave the country to get his visa at the U.S. Consulate. They are both aware that the husband may be subject to a 10 year bar from receiving immigration benefits if he leaves the U.S.
I advise the couple that since the foreign national husband initially entered the U.S. legally and has no criminal history, it would be possible for him to file a green card application as the immediate family member of a U.S.citizen. He will also be able to request work authorization. Furthermore, the wife can file the immigrant petition and that all of these documents can be filed together. Also, I advise the couple that the immigration process will occur in the U.S. and that the husband would not have to go to a foreign country to receive his visa.
In addition to this, I advise the couple that even though overstaying a visa and working without authorization is not lawful, the immigration laws may excuse this so long as the foreign national entered legally and is the immediate relative of a citizen. However, since the husband overstayed his visa, I would recommend AGAINST foreign travel until he gets his green card. I remind the husband that even if he is not necessarily subject to any kind of reprimand while in the U.S., if he leaves and then tries to reenter the U.S. he will then be subject to the 10 year bar. If you would like assistance with getting your green card, please contact us