Can I Apply for a Marriage Green Card if I Overstayed My Visa?

Yes, in many cases, you can apply for a marriage-based green card even if you overstayed your visa. But whether you qualify, and how the process works, depends on several factors, including how you entered the U.S., your immigration history, and whether your spouse is a U.S. citizen or a green card holder.

What Is Visa Overstay?

Visa overstay means you entered the U.S. legally, usually on a visitor visa (B1/B2), student visa (F-1), or work visa (H-1B), but stayed longer than your visa allowed. For example, if your tourist visa expired in January and you're still in the U.S. in July, you've overstayed.

Overstaying your visa can lead to penalties like:

• Being barred from reentering the U.S. for 3 or 10 years
  
  
• Losing eligibility for future visas
  
  
• Facing removal (deportation) proceedings
  
  

But there are exceptions, especially when it comes to marriage-based green cards.

The Good News: Spouse of the U.S. Citizen

If you’re married to a U.S. citizen, you’re in luck.

Overstaying a visa doesn’t automatically disqualify you. Here's why:

• U.S. immigration law forgives visa overstay if you're the immediate relative of a U.S. citizen—and that includes spouses.
  
  
• You must have entered the U.S. legally, even if you overstayed.
  
  
• You can adjust status (get your green card) without leaving the U.S.
  
  

Example:

Maria came to the U.S. on a tourist visa. Her visa expired 2 years ago, but she married a U.S. citizen last year. Because she entered legally and is now married to a citizen, she can apply for a green card without leaving the country—even though she overstayed.

This process is called adjustment of status and includes:

• Form I-130 (Petition for Alien Relative)
  
  
• Form I-485 (Application to Register Permanent Residence)
  
  
• Interview with USCIS
  
  

What If You’re Married to a Green Card Holder?

If your spouse is a lawful permanent resident (not yet a U.S. citizen), it’s a bit more complicated.

Here’s the issue:

• You may not be eligible to adjust status inside the U.S. if you’ve overstayed your visa.
  
  
• You might have to leave the U.S. and apply through consular processing—but this triggers bars to reentry if you overstayed for more than 180 days.
  
  
• You’d need a waiver of inadmissibility, which is hard to get and requires proving extreme hardship to your spouse.
  
  

Key Tip: If your spouse is a green card holder, consider waiting until they become a U.S. citizen. Once they naturalize, you can apply under the more favorable rules for immediate relatives.

What If You Entered the U.S. Without a Visa (EWI)?

If you entered the U.S. without inspection—meaning you crossed the border illegally—your case is even more complex.

In most cases:

• You can’t apply for a green card from inside the U.S., even if married to a U.S. citizen.
  
  
• You may need to leave the U.S. and apply from your home country, which can trigger a 10-year reentry bar.
  
  

There is a solution called I-601A Provisional Waiver, but:

• You must prove extreme hardship to your U.S. citizen spouse or parent.
  
  
• It’s a risky and lengthy process.
  
  

In this case, you should definitely speak with an immigration attorney before taking action.

Key Stats You Should Know

• Nearly half of undocumented immigrants in the U.S. are visa overstays, not border crossers (Pew Research, 2021).
  
  
• More than 94% of marriage-based green cards filed by immediate relatives of U.S. citizens are approved (USCIS data, 2023).
  
  

This means: Marriage to a U.S. citizen gives you the best chance of success—even after a visa overstay.

Common Mistakes to Avoid

1. Leaving the U.S. without legal advice – You could trigger a 3- or 10-year ban.
   
   
2. Failing to prove a bona fide marriage – Immigration looks closely at green card marriages.
   
   
3. Not disclosing your overstay – Always be honest on your application. Lying can lead to denial or even deportation.
   
   

What Should You Do Next?

If you’ve overstayed your visa and are married—or planning to marry—a U.S. citizen, you probably qualify for a green card. But every case is unique. Immigration laws are complex, and one small mistake can have serious consequences.

Get personalized help: Schedule a strategy session today with an experienced immigration lawyer here: https://sisulegal.com/pages/booking-immigration-law-windsor-troy

Feel confident knowing that overstaying a visa doesn't always mean you're out of options. The key is knowing the law—and getting the right help to guide you through it.