Can You Apply for a Marriage Green Card After I-94 Expiration or Overstay?

Today a reader asked: "Out of nowhere! Just as I was preparing to get married, I discovered my I-94 has expired. Can I still apply for a marriage green card?!"

Simply put: if your spouse is a U.S. citizen (and your application has no other issues), then yes.

Bars for Overstaying

Overstaying in the United States creates unlawful presence, and the consequences vary depending on the length of the overstay. First, after an overstay, the visa automatically becomes void; second:

• If unlawful presence exceeds 180 days but is less than 1 year, a 3-year bar applies — if you are in the United States, you cannot adjust status; if you leave the United States, you cannot reenter for 3 years.

• If unlawful presence exceeds 1 year, the bar becomes 10 years.

We previously covered this issue in the article below.

[embed-post id=64880]

Marriage to a Citizen Can Provide an Exemption

The bars related to adjustment of status have several exemptions, including victims of domestic violence and immediate relatives, meaning the parents, spouses, and unmarried children under 21 of U.S. citizens. Therefore, if your spouse is a U.S. citizen (permanent residents/green card holders do not qualify), you may still apply to adjust status and obtain a green card, provided that:

• You entered the United States lawfully. If you entered unlawfully — for example, by crossing the border without inspection — you would need to apply for an immigrant visa at a U.S. consulate and cannot apply to adjust status within the United States. The consulate may determine that you are inadmissible.

• Your marriage is genuine and legally valid (all marriage green cards require proving this).

• If you entered with K-1 status, you must marry the fiancé(e) who was the basis for your K-1 visa.

In short, this path is available to applicants who entered lawfully on nonimmigrant visas such as B or F but overstayed in the United States for various reasons—if you marry a U.S. citizen, you can adjust status within the United States. Note: marriage to a green card holder does not qualify.

Visa Fraud Issues

If you specifically used a nonimmigrant visa to enter the United States for the purpose of finding someone to marry and then applying for a green card, you may be denied a green card for visa fraud. Immigration officials will consider various factors, such as: what type of visa did you use to enter? How long ago was that visa obtained?

If you obtained an F-1 student visa or H-1B work visa several years ago and later met your spouse in the United States, you generally need not worry about being accused of visa abuse.

Conversely, if you have been dating your new spouse for a long time, applied for a B1/B2 visitor/tourist visa a few months ago, bought wedding rings, and then came to the United States to marry and apply for a green card, USCIS may find that you misused the tourist visa—your purpose in coming to the United States was not tourism but rather an existing immigration plan. This could lead to denial of your green card application.

Adjustment of Status vs. Consular Processing

A foreign national who entered the United States lawfully and marries a U.S. citizen may file Form I-485 to adjust status and apply for a green card based on "immediate relative" status—even if your I-94 has expired. As long as you are not arrested by U.S. immigration authorities before filing Form I-485, your stay after filing Form I-485 is lawful, and you can obtain a green card in the United States. Of course, unless there are other issues with your application—such as marriage fraud.

However, foreign nationals who entered the United States illegally are generally not allowed to apply for adjustment of status within the United States. And if you leave the United States and go to a consulate to apply for an immigrant visa, you may face 3-year and 10-year bars—depending on how long you unlawfully stayed in the United States. You may need to apply for a waiver, but you must be able to show that denying your immigration application would cause extreme hardship to your U.S. citizen (or green card) spouse (or parent).

[embed-post id=193751]

Special Situation for K-1 Fiancé(e) Visa Holders

For citizen spouses who entered the United States lawfully and intend to apply for adjustment of status in the United States, there is another important exception: if you entered on a K-1 fiancé(e) visa but the person you now marry is not the fiancé(e) who originally petitioned for your K-1 visa—in other words, you entered on a K-1 visa as A's fiancé(e) but ended up marrying B in the United States—then you cannot apply to adjust status and obtain a green card.

You may still be able to obtain a green card, but you must first leave the United States. Then B must file Form I-130 for you, and you must go to a U.S. consulate to complete the immigrant visa application and interview. Please note that if you previously unlawfully stayed in the United States for more than six months, you may trigger the bars mentioned above.