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Can A Tourist Visa Overstay Win Permanent Residency?


“My boyfriend is 22 years old. He is without papers. We’re thinking about getting married. When his parents brought him into the U.S., he was only five. They came in with tourist visas. Is there any hope for him to stay here if I immigrate him“?”

(Submitted by Vanessa M., Temecula, CA)


Does he have proof of the tourist visa? If so, he is in a lucky position. He falls into the category of immigrants who entered legally and overstayed, rather than the category of immigrants who entered without permission.

For purposes of this discussion, I’ll assume your boyfriend’s tourist visa was valid when he entered.

To begin, you should be aware there are significant legal distinctions between immigrants who arrive without inspection and those who enter with permission.

In certain circumstances, like your boyfriend’s situation, such differences could have a huge impact on his ability to become a lawful permanent resident.

Anyway, here is the short answer to your question.

Since your boyfriend arrived lawfully, he may be able to file his application and be interviewed here in the United States.

You’re probably worried because you heard stories about immigrants who had to return to their home countries for their green card interviews.

They were not allowed to return.

At this time, a better answer about your fiancé’s position is not possible because how he entered is not the only issue that matters to the United States Citizenship And Immigration Services (USCIS).

For example, one concern is whether he ever left the country after arriving here at the age of five. If he did, when he left could affect his case. In addition, how long he lived abroad before returning to the U.S. will be important.

Further, if he left, then returned, did he return with inspection again?

Or did he re-enter without inspection?

But let’s assume that the entry issue poses no problems for him.

There are still other issues to deal with.

Criminal convictions could affect his application. If he has arrests and convictions, he should probably consult with an immigration lawyer to find out if they are the type of offenses which can harm his chances of becoming a legal resident.

This should take place before you file any papers for residency.

If you plan to file his application soon after getting married, and he is successful, he will only be given conditional permanent resident status. After two years, he will need to file to remove this conditional status, at which point he becomes a full green card holder.

By the way, for now, since you are a U.S. citizen, you are entitled to immigrate all of your closest relatives. This includes your spouse, parents, children, brothers and sisters.

I mention this because this may change in the future. Some immigration reform discussions have centered on reducing the ability of U.S. citizen brothers and sisters from sponsoring their immigrant siblings, as well as restricting U.S. citizen parents from immigrating their children who are past 31.

These are just proposals.

Nonetheless, I encourage you to keep on eye on reform talks – just to ensure there is nothing coming up soon which might harm your future spouse’s options for a becoming a lawful permanent resident.

If you hear something that might harm his case, you should contact an immigration green card lawyer.

Don’t take chances.

By Carlos A. Batara, Filed Under Q&As: Green Cards And Permanent Residence.

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