Becoming a green card holder even if you overstayed your welcome (and your visa)

April 27, 2012

As a member of the Polynesian community, specifically Samoan – but this applies to pretty much everyone – I often meet people who came to the U.S. many years ago on a tourist visa and never left. Sometimes after decades of living here, working, raising families, these people believe that there is no hope of becoming legal residents. In many cases, however, that is not the case and in fact, they can quite easily apply for a green card if they have (1) a U.S. citizen spouse or child (over 21) and (2) they have never left the U.S. after their initial entry all those years ago. This is key: if you overstayed your visa, left the U.S. and then returned, depending on when you left and returned, and how long you overstayed, your case can be greatly affected – from perhaps requiring a waiver, to not being eligible to apply at all. It also helps if they have proof of their legal entry into the U.S., like an original passport or an I-94 (the card you get stamped when you enter) – but I will get back to that later.

This type of “adjustment of status” (i.e. going from undocumented to green card holder) falls under Immigration and Naturalization Act section 245(a). Basically, an alien who has been “inspected and admitted” upon entry (i.e. you had permission to enter, like a tourist visa), can adjust their status to permanent resident through an immediate relative – so either a U.S. citizen spouse or adult U.S. citizen child. It often does not matter how long ago the person entered the U.S., or how long they overstayed their visa. There are obviously intricacies to every individual case that would affect this basic rule, however, which is why you should always consult an attorney about your specific case.

Now, I address this to my Polynesian community because EVERYONE was “inspected an admitted” upon entry into the U.S. – I mean, we didn’t swim here people. So, even if you flew over 30 years ago and never left, if you have a citizen spouse or adult citizen child, they can most likely petition for you and you can obtain your green card with relative ease. I should point out here, that if your spouse or child was born in American Samoa, but has been residing in the U.S. for more than two years, they can easily apply for citizenship and then turn around and apply for you. But that’s for another blog.

As I stated before, it often helps to have the original passport you came on, or your I-94 card, so that you can easily prove your legal entry into the U.S. If you no longer have either of those, however, all is not lost. Current immigration case law does not REQUIRE physical proof of entry, but rather you can prove your lawful entry through testimony alone. This often means, however, that you end up having to prove your entry before an immigration judge. For the sake of keeping this particular post as basic as possible, I will not address the requirements for proving your case if you do NOT have proof of your entry – as in you didn’t keep your passport from 20 years ago. I will save that for another blog – but rest assured, cases can be won without physical proof of your entry.

So, if you arrived here 3 months, 3 years or 3 decades ago and did not leave when you were “supposed to” you are not necessarily barred from becoming a permanent resident. If you think this applies to you, now is the time to seek counsel so that they can analyze your specific case and help you through the application process.

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Becoming a green card holder even if you overstayed your welcome (and your visa)