Visa Overstay? Top 9 Ways To Get a Green Card WITHOUT Leaving US!

If you have overstayed your visa in the United States, what are the top ways that you can stay to fix your status without having to leave the US?

Depending on how long you have overstayed your visa, you could be looking at either a three-year bar or a 10-year bar, or even in some situations, a permanent bar if you were to leave the US and try to re-enter.

Not only that, you might actually be ineligible to actually get a visa or a green card to return to the US.

So it is important that you understand the implications of what it means to overstay your visa and understand each of these nine options that could potentially waive your unlawful status and get you a green card before these obstacles stop you.

Sponsored by a US Citizen Relative

The first and probably most common way to get a green card in the US without having to leave is to be sponsored by a US relative.

If you are the spouse, unmarried child under 21, or parent of a United States citizen, you will be considered to be an immediate relative and can be immediately sponsored by your relative for adjustment of status while in the United States. This is possible as long as you have entered the United States in a legal manner.

For this sort of a sponsorship, it does not actually matter how long you overstayed your visa or whether you worked without authorization. As long as you have not left the United States since entering and since your visa has expired, then your family member may be able to sponsor you without requiring you to leave the US for sponsorship. Note here that I have said that this family member must be a US citizen and not a green card holder.

If you have overstayed your visa and your relative is a green card holder, then the unlawful presence that you have accrued since the expiration date of your visa cannot be waived through a family petition. Moreover, if you have worked without authorization and your family member is a green card holder, this too cannot be waived through a family petition. This means that if your sponsoring relative is a green card holder, then you would need to leave the US for processing at a consulate abroad in your home country.

So assuming that you are an immediate relative of a US citizen and that you have a legal entry into the United States and you don't have any other problems that would prevent you from adjusting your status, then you can do so by:

-Having your US relative file the Form I-130 Petition for Alien Relative‍

-You filing a Form I-485 Application to Register Permanent Residence or Adjust Status

-Attending your biometrics appointment

-Attending a green card interview should one be requested

-Receiving a decision on your application.

The total amount of time from start to finish can range anywhere from 10 to 23 months and could cost between $1,340 and $3,000 depending on which forms you have to file. If you meet all of the eligibility requirements to apply, then the chances are good that your application will be approved. To learn more about this process, watch my other video, How to Bring Your Family to the US.

Marrying a US Citizen

Marrying a US citizen falls into the same category of being sponsored by a US citizen as an immediate relative, so all of the same eligibility requirements that I just discussed would also apply. Same can also go for the cost and the average timeline.

Similarly, if you are married to a green card holder and not a US citizen, then you cannot waive your unlawful presence, nor can you waive your unauthorized employment, and you would need to leave the US to adjust your status, or you can wait for your spouse to naturalize and they can sponsor you there instead.

The main difference between a marriage petition and any other petition where you're being sponsored as either a parent or a child is that usually there is a lot more scrutiny in the marriage cases and the potential for more things to be considered a red flag.

The first red flag could be the fact that you came here on a visit visa or any other sort of visa that was not an immigrant visa yet you married almost immediately within entering the United States. This can typically be seen as a sign of fraud that you may not have told the truth about your intentions in obtaining that visa, and instead we're really planning to come here to get married to a US citizen instead.

The second red flag could be that you overstayed your visa.

Immigration knows that you are highly motivated to get a green card and waive your unlawful presence through marriage to a US citizen, so they are going to put extra scrutiny on your relationship and on your marriage to check whether or not it is bona fide. This means that if you overstayed your visa, you do definitely want to make a lot of effort in collecting good evidence to prove that you have a good faith relationship and marriage and that you did not just enter into the marriage for the purpose of applying for a green card.

The third red flag is that you get married soon after meeting your spouse.

If you overstayed your visa and you met your spouse soon after entering the US and you got married very quickly after meeting your spouse, then this will definitely raise a bunch of red flags to immigration and it will require that you work extra hard to put together a good application so that you can prove to immigration that your marriage is bona fide.

Despite these little obstacles, the marriage green card process is still one of the best ways for persons to be able to legalize your status in the US, especially if they have overstayed their visa by a number of years.

T Visa

The next option to adjust your status in the US without having to leave is through the T Visa. This is something that so many people across the US qualify for but don't even know it. And unlike the previous options, the T Visa does not require for you to be sponsored by a family member at all. It only requires for you to have been put into a situation that is considered to be human trafficking.

Human trafficking consists of situations where you are forced or coerced into doing work by someone else through force, fraud, or coercion. This can happen either at an actual place of employment, by a boss, or by a company, or even by a domestic partner who you may be in a relationship with. Yes, you may even be married to them and also be trafficked at the same time. What really matters is that the work that you did underneath these circumstances was done out of fear that you would suffer some sort of harm at their hands or outside.

For example, if your boss or your partner threatened to get you deported, hurt you physically, or have you arrested if you do not do what they say, then this could certainly constitute trafficking.

And the T Visa not only provides a pathway to you to get a green card in the US without having to leave, but it also helps provide a pathway to legal status for your family members such as children under 21, parents, siblings, and sometimes even their children, aka your brothers or sisters. In addition, it can help you be shielded from deportation, obtain a work permit, and help you get a social security card.

And if that sounds good and you think you might qualify, then you need to complete the Form I-914 for T Non-Immigrant Status and submit it to immigration along with the required documentation and a waiver of inadmissibility. This application process can typically take between 18 to 36 months.

Then, once you are granted T Visa status, you can apply for a green card after a period of three years has passed. Again, the green card process after this can take between 10 months to 23 months. So altogether, the timeline from submitting your T Visa application to getting a green card is five to six years. And don't forget that during this time, you will be protected from deportation and have the ability to work legally.

There is no government fee to apply for a T Visa, but it is a difficult case to try to prove on your own without the help of an attorney, which means that you will have to likely pay attorney's fees.

VAWA

Now, if you have gotten married to a U.S. citizen but your marriage is not working out or you have an adult U.S. citizen child who is not exactly willing to sponsor you, then the typical family application or marriage petition may not be the best for you. However, you still may have a solution to get your green card without having to leave the U.S. through a process called VAWA.

Similar to the T Visa, VAWA helps both men and women be able to get a green card in the U.S. without having to leave. And as with the T Visa, VAWA also protects you from deportation, helps you get a work permit, helps you get a social security card, and can also help you get a travel permit all before you even get your green card.

There are three main programs underneath the VAWA law:

-The first is for spouses of either U.S. citizens or green card holders.

-The second is for children of U.S. citizens who have been abusive to them.

-And the third program is for parents of adult U.S. citizens who have been abusive to the parents.

This program is designed to protect those who have suffered physical or emotional abuse at the hands of their U.S. relative or green card holding relatives.

Some examples of abuse that may qualify you for VAWA include physical abuse such as:

-Hitting, slapping, punching, or kicking.

-Emotional abuse such as verbal threats, humiliation, manipulation, cursing you out, and other forms of psychological manipulation.

-And any sort of controlling behavior such as preventing you from seeing your friends or seeing your family, controlling how much money you spend, what you wear, how much you weigh, how you do your makeup, and threats to use immigration against you.

And unlike the T Visa, persons who get approved for VAWA do not have to wait a period of three years to apply for a green card. They can, in reality, apply for a green card concurrently with their VAWA application in most cases.

The entire process from start to finish, from filing a VAWA application to getting the VAWA approved to getting a green card approved, is approximately two and a half to three and a half years. As with the T Visa, there are no government fees associated with the VAWA filing, but it can be a complicated case to try to prove on your own, so you may want to save for attorney's fees.

Over the past 14 years, my office has successfully helped thousands of persons apply for and be approved for VAWA, so if you are looking for assistance with either a VAWA case or a T Visa case, feel free to call us at 212-248-7907 to schedule a case evaluation.

I'm based in New York, but I work with clients all over the U.S.

U Visa

Okay, now the next option to adjust your status in the U.S. without having to leave is through a U Visa. This is a program meant to protect undocumented individuals who have been the victim of serious criminal activity here inside the United States.

In order to qualify, you need to have been the victim of a qualifying criminal activity such as domestic violence, assault, kidnapping, stalking, extortion, fraud, and sexual assault. There are other types of crimes that may also qualify. Always discuss with an attorney to see if this may apply to you.

The crime not only needs to have occurred in the United States, but you must have suffered some sort of physical or mental injury from the crime.

Next, you must also have provided information about this crime to law enforcement authorities, and you must have cooperated in any sort of investigation or prosecution of the crime, and law enforcement agencies must be willing to sign a certification for your U Visa case before you can submit your application to USCIS.

Note that there is an annual cap of 10,000 U Visas per year, and there is now a backlog of more than 300,000 U Visa applications waiting to be decided.

That means you may need to wait five to six years just for an initial review and possibly 10 to 20 years before actually receiving your U Visa status.

The good news is that the government has started to give out bona fide determination work permits for U Visa applicants, which means that you can at least for the time being get work authorization and a social security card upon applying for a U Visa.

And similar to the T Visa, upon approval of your U Visa status, you must wait a period of three years before you can apply for residency.

For those who are interested in applying, you must submit the form I-1918 and also a supplement filled out by law enforcement through the I-1918B. And you must submit this along with any supporting documentation that you have. Assuming that you are the victim of a qualifying criminal activity and you have helped law enforcement, there's a good chance that you'll be approved.

But I must note that there are certain law enforcement agencies and jurisdictions throughout the U.S. that are not as helpful or as willing to sign U Visa certifications as others. As always, working with an attorney is going to help you with your case. While the U Visa is a great way to get legal status, the wait time is immensely long right now. Therefore, for most clients, I usually look at the U Visa as a last resort.  

Asylum

The next option to adjusting your status in the U.S. without having to leave is through asylum. The United States offers asylum to individuals who have suffered persecution in their home countries on account of their race, religion, nationality, being a member of a particular social group, or because of their religious or political beliefs.

Typically, you must apply for asylum within your first one year of entering the United States as there is a one-year deadline to applying for asylum. In certain circumstances, you can apply after one year has passed if you have a qualifying circumstance that is either extraordinary, that shows the reason for delay, or there has been a changed circumstance in your country that necessitates the filing of asylum so late.  

USCIS is supposed to schedule your asylum interview within 45 days of filing. However, the backlog is currently six years for an interview on your asylum case.  

If you are granted asylum, then you would have to wait a period of one year before you can apply for your green card. So the entire process of adjusting your status through asylum can also take as long as a decade.

Section 245(i)

Another way some immigrants who have overstayed their visa can adjust their status without leaving the United States for processing can be through something called Section 245(i) Adjustment of Status.

This is designed to provide a legal path for long-term undocumented individuals with deep family and employment roots in the US. Unfortunately, this only applies to a small subset of individuals in the US as the requirements are actually quite narrow. For this application to apply to you, either you must be the direct beneficiary of or a derivative beneficiary of either an I-130 or a labor certification application filed on or before April 30th, 2001.

Moreover, you must also show a certain amount of presence in the US before and after this application was filed. In the event you can file this application, you also have to pay an additional penalty of $1,000 with your application. This is going to be in addition to any other processing fees for your I-485, which presumably you would file at the same time.

The amount of time that it takes to process is also going to take anywhere from 10 months to 30 months. The same amount of time that it takes to process an I-485.  
But if you qualify, that's really great news. It's like finding a unicorn.  

Special Immigrant Juvenile Status (SIJS)

Another method to adjust your status here in the US without needing to leave for processing abroad includes status through Special Immigrant Juvenile Status, aka SIJS.
Like Section 245(i), this also applies to a small section of people, but maybe a little bit broader than you think.  

SIJS was created to protect children under 21 who have been abused, abandoned, or neglected by one or both of their parents. In order to qualify, you need to be under 21, unmarried, physically present in the US, and be declared dependent by the juvenile court in your state.  

You must also be unable to reunite with one or both of your parents due to abandonment, neglect, abuse, or some other similar reason. And it must be in your best interest to remain in the United States and not return to your home country. Similar to the other humanitarian cases that we have discussed, there is no government filing fee associated with filing this application with USCIS, and the fee is also waived for when you file your I-485.  

It's taking USCIS 8 to 12 months to process these petitions, and then once it's approved and you file your I-485, you will have to wait whatever period of time is being dictated by the visa bulletin for your category, which will be EB4. It could take as long as 7 to 8 years to get your green card, depending on the current visa wait time.  

Cancellation of Removal

The next method of adjusting your status if you have overstayed your visa is cancellation of removal, which many people refer to as the 10-year rule. But people mistakenly believe that you can apply for a green card based upon being in the US for just 10 years as normal.

However, cancellation of removal is only allowed in court in front of an immigration judge as a defense during deportation proceedings. Therefore, you can only ask for cancellation of removal if you are actually in deportation.

In order to qualify as a non-permanent resident for cancellation of removal, you must meet the following criteria, which includes:

-Having been continuously physically present in the US for a period of 10 years before the date of application.

-Be a person of good moral character during this period.

-Not have any disqualifying criminal convictions.

-Demonstrate that your removal would result in exceptional or unusual hardship to a US citizen or a lawful permanent resident spouse, child, or parent.  

Some criteria that can be used to evaluate exceptional or unusual hardship can include:

-The health of your qualifying relatives and whether or not they can get qualifying medical care in the country that you would be sent to.

-The age of your family members, especially if they are particularly vulnerable as children or elderly.

-Special education needs of your children.

-Psychological hardship.

-Financial issues that can prevent your qualifying relative from being able to support themselves.

-Other family connections in the US versus the countries to which you'd be deported to, which could result in certain social harm.

-How well your qualifying relative can actually adapt into the customs and language of the country that you may get deported to.

This can be a particularly difficult thing to prove, so you will need strong evidence of your claim and because you will be in court, you definitely should be working with a qualified immigration attorney with great experience on this matter.

Cancellation of removal is a slow process because immigration court is a slow process and can take anywhere from four to ten years sometimes to get a hearing date.  
It is usually an option of last resort for persons who qualify, so I still encourage you to look at some other options such as a T Visa or a U Visa if this may apply to you.

If you would like to learn more about applying for the T Visa or VAWA, I will include links to two of my videos that explains how each of these programs work. In each one, I go into more detail about who qualifies, how to apply and what sort of documents and evidence you need to include with your case.

So go ahead and click here to watch the T Visa video and here to watch the VAWA video and I'll see you there.