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Overstaying Visa USA: What Are My Options?

Author: NY US Visa Immigration Lawyer Alena Shautsova

Overstaying Visa USA

NYC Immigration lawyer Alena Shautsova helps clients to resolve their Immigration challenges and qualify for US Immigration benefits. This blog will provide a general outline for those who overstayed their US visas.

If you overstayed a US visa, it means, at least, that when you entered the US you were inspected and admitted: which is already a big plus compared to those who entered the US without inspection. Now, all will depend on how long you overstayed for, what particular visa or status you overstayed, and if you have an employer or a family member that may sponsor you, if you have children in the US, and if you may qualify for any of the humanitarian visas. We will review different options using real-life scenarios rather than legal language, and will see if any of those scenarios will work for our hypothetical immigrant "Olga".

Let’s take a common scenario: Olga entered the US on a B1/2 visa. At entry, Olga was admitted for 6 months. Olga never filed for an extension of status. Four years after her entry, Olga met Ivan, a recent green card holder. Will Ivan be able to help Olga to obtain status in the US? Let’s assume, that the couple gets married. Ivan can start sponsoring Olga by filing an immigrant relative petition I 130, but Olga will not be able to file for adjustment of status (or a green card) without leaving the US if Ivan only a green card holder: after Olga’s B1/B2 status expired, she accumulated unlawful presence time or a gap in her lawful non-immigrant status which cannot be forgiven to her since Ivan only a green card holder. Olga may, however, qualify for an I 601A waiver: a waiver that one files for in the US and waits for its results in the US, but then has to travel outside the US to get a US immigrant visa and come back...

If Ivan becomes a US citizen... the “gap” will be automatically forgiven to Olga, and so will be any time Olga worked in the US without authorization, and Olga does not need to travel overseas or get an I 601A waiver…. Why? Because the way the US Immigration laws are written: they favor “immediate relatives,” or spouses, parents and under- 21 -years -old children of US citizens. Plus, the main requirement: legal entry, will be met, since Olga was in fact “inspected and admitted” when she came to the US! If Olga entered the US without inspection, the fact that Ivan is a US citizen will be less helpful: she would still need to leave the US after her I 601A is approved and successfully get a visa overseas to become a green card holder...

Let’s say that Olga and Ivan did get married, and Ivan is a US citizen, but he refuses to sponsor Olga. In addition, he is abusive verbally and physically, he threatens Olga with deportation, he drinks, he is not a nice guy… What can Olga do now? Olga can sponsor herself, without Ivan’s “help” if she can qualify for VAWA benefits. When one files for VAWA benefits (which are available for men as well), he/she does not need to worry about the gap in their status or unlawful presence. In fact, even if Olga was not inspected and admitted (she “crossed the border”), she would still qualify for VAWA benefits...

But what if Olga and Ivan just live together? The couple never married… In fact, Ivan, as it turned out does not have a legal status at all: he lied to Olga when told her he was a green card holder... He has no status, also is abusive, and Olga even had to call 911 and complain about domestic violence. If Olga became a victim of domestic violence, regardless of Ivan’s status or the fact that the couple never got married, Olga may qualify for a U visa benefits. When one files for a U visa, they are also forgiven for visa overstay, work without authorization, for “illegal” entry if they had one, and, at times, even for fraud...

Time passes, Olga and Ivan split without ever getting married. But Olga found out she is pregnant. She gives birth to a beautiful baby, but Olga still is without status... Can a US citizen baby help Olga to get a green card? Not directly. Only if Olga is placed in removal or immigration court proceedings, and can prove that 10 years passed since her entry, and that her baby will suffer extreme hardship in case of her removal, Olga will be able to stay in the US and qualify for a green card (some other conditions must be met as well). But wait, Olga was abused: she may also try a VAWA cancellation of removal, in certain situation... but this relief is available only to those in removal proceedings...

What if Olga never met Ivan. She is single. All she has is her job? Her employer loves Olga for her hard work and punctuality, and is willing to sponsor her. Can Olga’s employer help her to get a green card? Well, if Olga entered the US in a B1/B2 status, then no: since after the expiration of her status, Olga accumulated more than 180/360 days. Olga will not be able to get a green card in the US due to the law prohibiting adjustment of status of employer-sponsored individuals if they have a gap in their status for more than 180 days. But Olga also cannot qualify for an I 601A waiver and get a US immigrant visa overseas: she is single, and does not have a qualifying relative (a green card holder or US citizen spouse or parent). However, Olga came for a consultation to an attorney. An attorney looked at Olga’s passport and discovered that she entered the US on a J1 visa and was admitted in a J1 status (Work and Travel program). An attorney discovered that overstay of a J1 visa (and also, for example F1 visa) does not cause accumulation of unlawful presence. As such, even though Olga cannot get a visa in the US based on the employment petition approved for her, she can leave the US and get a visa at a US consulate, and does not need a waiver for unlawful presence: she has none!

Finally, let’s change this situation a little bit: Olga stayed in the US on F1 visa for a year or so. While Olga was still in valid status, an employer started the sponsoring process for her, but the process was finished when Olga fell out of status. Now, Olga is ready to file a green card, but she is without status. Will she be able to adjust her status to lawful permanent resident? Yes, but only if the time between Olga’s lapse of status and the day when she files for adjustment of status is less than 180 days…or Olga can prove that her failure to maintain her lawful non-immigrant status was due to no fault of her own. Here, some people who managed to file their asylum applications while still in lawful non-immigrant status may argue that they should qualify for adjustment of status based precisely on this exception, even if their affirmative asylum has been pending for years after the expiration of their lawful non-immigrant status under Matter Of L-K 23 I&N Dec. 677 (BIA 2004).

Are you tired of Olga yet? If you are , and you’d rather talk about your case, please call us to reserve your confidential appointment at 917 885 2261!

26 October 2021
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