Understanding Green Cards and Previous Immigration Violations: What You Need to Know

May 6, 2024

Understanding-Green-Cards-and-Previous-Immigration-Violations

How Do Overstays, Unauthorized Presence, and Illegal Entry Influence Your Green Card Application?

In this article, we will discuss the impact of immigration violations on your green card application. If you’ve ever overstayed a visa, remained in the U.S. beyond the 90-day limit under the Visa Waiver Program (also known as ESTA), lived in the country without legal immigration status, or entered unlawfully, you could encounter significant barriers to obtaining a green card. Being present in the U.S. without legal immigration status might render you ineligible to apply for a green card domestically or could lead to being prohibited from re-entering upon departure. The length of time you must stay away from the U.S. depends on how long you stayed unlawfully.

In such circumstances, you might qualify to request a “waiver of inadmissibility.” Securing a waiver involves proving that your family member would suffer extreme hardship if you couldn’t stay together in the U.S. While obtaining a waiver is difficult, it is possible with a compelling case.

Overstays and Unauthorized Presence

If you remain in the United States beyond the authorized period on a valid visa (such as a tourist or student visa) for less than 180 days, your visa will become void, necessitating the acquisition of a new visa in your home country for re-entry into the United States.

In this situation, you remain eligible to return to the United States at any time, provided you obtain the requisite visa. However, obtaining a new visa after overstaying on a prior visit will be more arduous, as you must demonstrate to the consular officer that you will not overstay your visa again.

If you enter the United States via the Visa Waiver Program and exceed the 90-day limit, you forfeit eligibility for future participation in the program, despite being from one of the eligible countries. Should you wish to return to the United States, you must apply for a visa at the local U.S. embassy or consulate.

If your unlawful presence in the United States exceeds 180 days, meaning you overstayed your visa by 181 days or more, you will face a bar on re-entry for a specified period. Remaining unlawfully present for between 180 and 365 days results in a three-year entry ban, while surpassing a year leads to a ten-year prohibition. These are commonly referred to as the “three- and ten-year bars” or simply the “re-entry bars.”

However, if you overstayed after entering the United States with a valid visa or under the Visa Waiver Program, and are married to a U.S. citizen, you can still pursue a marriage-based green card without departing the United States.

Leaving the country after overstaying the duration of a previous visa

Relatives of U.S. citizens represent one of the few groups of immigrants permitted to seek and obtain a green card without departing the United States, even if they lack legal immigration status at present. However, they must have initially entered the United States legally.

If you fall into this category and wish to travel abroad while your green card application is in progress, you can apply for a travel permit, officially known as an Advance Parole Travel Document. You won’t be subject to re-entry bars for unlawful presence, even if you would have otherwise faced such restrictions. It’s crucial to note, however, that this policy, established by a 2012 ruling of the Board of Immigration Appeals, is not consistently enforced nationwide and is subject to change, potentially even while you’re outside the United States.

If you’ve been residing in the United States without legal status, it’s advisable to wait until you’ve obtained your green card before traveling abroad.

Unlawful Entrance

The implications of unauthorized entry are more intricate. If you unlawfully entered the United States (as opposed to overstaying), you are ineligible to pursue a green card from within the country. However, departing the United States to apply for a green card from abroad can be risky—exceeding 180 days of unlawful presence triggers a re-entry bar lasting 3 or 10 years, as explained earlier.

Nevertheless, if you entered the United States illegally but left before surpassing 180 days, you wouldn’t face a re-entry bar and could seek a green card through the U.S. embassy or consulate in your home nation.

It’s also crucial to recognize that if you were deported from the United States and subsequently re-entered illegally, you would be permanently barred from entering the United States.

Exemptions from Inadmissibility

As mentioned earlier, if you entered the United States unlawfully and have accumulated more than 180 days of unauthorized presence, you must depart the United States to seek a green card at a U.S. embassy or consulate. To circumvent the three- and ten-year re-entry bans, you must request a “waiver of inadmissibility” to return to the United States.

To be eligible for a waiver, you must demonstrate that your “qualifying relative” would endure “extreme hardship” if you were not permitted to reside in the United States. For this specific type of waiver, known as an “unlawful presence waiver,” a qualifying relative can be a spouse or parent who is either a U.S. citizen or a U.S. green card holder. (While information regarding the hardship faced by your children can be included in the application, children themselves are not considered qualifying relatives for unlawful presence waivers.)

When preparing your waiver petition, you must establish that the hardship your relative would face is “extreme.” There must be a compelling reason why you and your relative cannot live together in your home country, along with a convincing argument that your relative will suffer if you are not permitted to reside in the United States.

In the past, you would have been required to leave the United States first and apply for a waiver at the U.S. embassy or consulate simultaneously with your green card application. However, nowadays, you can request a “provisional waiver” before departing the United States. This not only reduces the duration of time you must spend outside of the United States but also provides some assurance that your waiver will be approved.

USCIS policies regarding waivers have undergone significant changes in recent years. Before August 2016, only spouses of U.S. citizens were eligible to obtain a provisional waiver before departing the United States, but now spouses of green card holders receive the same treatment. Additionally, waivers were previously restricted to individuals applying for a marriage-based green card, but now anyone seeking a green card can apply for a provisional waiver. This expansion of eligibility for provisional unlawful presence waivers has led to longer processing times, with USCIS taking up to 8 months to process them. Ensure you have the latest information from USCIS regarding provisional waiver eligibility.

Overstaying your visa, remaining in the United States without legal immigration status, and entering the country unlawfully can complicate your application for a marriage-based green card. However, as explained earlier, past immigration violations may not necessarily preclude you from obtaining a family-based or marriage-based green card.

Immigration Violations FAQs

What constitutes a “visa overstay”?

An overstay occurs when you entered the United States with a visa (or under the Visa Waiver Program) but remained beyond the permitted duration. (The Visa Waiver Program permits citizens of certain countries to travel to the United States without a visa for a maximum of 90 days.)

Note: The Visa Waiver Program (VWP) enables most citizens or nationals of participating countries* to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa.

What is “Unauthorized Presence”?

Should you exceed the duration of your visa, you begin to accumulate unlawful presence. Unlawful presence signifies your presence in the United States without any immigration status, also referred to as being in the United States “illegally” or “undocumented.”

What is “Unlawful Entrance”?

Unauthorized entry into the United States without undergoing inspection is categorized as illegal entry. In the immigration context, “inspection” refers to the process where a Customs and Border Patrol (CBP) officer verifies your passport and grants entry into the United States.