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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 fortunate position. He falls into the category of immigrants who entered legally and overstayed, rather than the category of immigrants who entered without permission.

Let’s start with the basics.

Because he has been living here without ongoing authorization, he is known as an overstay.

What Is An Overstay?

When an immigrant who enters the U.S. with a visa to stay for a limited period of time, but fails to leave when the authorized period expires, the immigrant is considered to be an overstay and subject to deportation or removal.

Manner Of Entry: With Or
Without Inspection?

For purposes of this discussion, you should be aware there are significant legal distinctions between immigrants who arrive in the U.S. 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.

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 come back.  Those cases generally involve more issues than simply overstaying a visa expiration date.

Your boyfriend’s case may be quite different.

For now, I’ll assume your boyfriend’s tourist visa was valid when he entered.

In a strange quirk of law, if your boyfriend arrived lawfully, he may be able to file his application for permanent residency and be interviewed here in the United States.

Without having to return home.

It is possible this is your fiancé’s situation.

Not definite.  But possible.

At this time, however, a better answer about your fiancé’s position is not possible because there are several facts of his immigration history which are unknown.

For instance, as noted above, how he entered – with or without inspection – at the age of 5 is a critical issue.

But that entry, 17 years ago, even if it was a lawful entry, is not the only issue that matters to the United States Citizenship And Immigration Services (USCIS).

For example, an immigrant’s entire entry and exit history is questioned by the government.

And 17 years is a long period of time.  He may have made multiple exits and entries.

This is where his case could become far more complicated.

In the past couple of years, the government has started to crack-down on overstays.

Some estimates show that more than 300,000 immigrants living in the U.S. have stayed past their expiration dates.


Two Concepts Green Card Applicants Must Understand: Out Of Status vs Unlawful Presence

In short, here is the crux of the exit-entry matter.  Whether he ever left the country after arriving here as a young child could affect his odds for a green card victory.

If he did leave, when he left could negatively impact his case.  How old was he?  How long did he live in the U.S. before he left?

If he did leave, how long he lived abroad before returning to the U.S. could likewise affect the outcome of his case.

Further, if he left, then returned, did he return with inspection and permission again? Or did he re-enter without inspection?

Depending on this history, he might be restricted to winning permanent residence by attending an interview in his home country.  This is known as consular processing.

Based on the information you provided, it appears your fiancé has accumulated four years of unlawful presence in the United States.  (Until he turned 18, he is exempt from this rule.)

This means he could be subject to facing a ten-year or lifetime bar on re-entry to the United States if has to return to his home country for his interview.

This possibility is why more evidence about your fiancé’s immigration history is crucial.

Additional Issues To Consider: Conditional Residency And Income Concerns 

Two side notes before closing.

If you plan to file a petition for your fiancé soon after getting married, and he is granted a green card within two years of the application submission, he will only be given conditional permanent resident status.

After another two years, you will need to jointly file to remove this conditional status, at which point he is eligible to  become a full green card holder.

Here is another issue to know about.

In the summer of 2018, the government attempted to impose a complex procedure requiring applicants to show proof they will not become dependent on government assistance if granted permanent resident status.

(This is often referred to as becoming a public charge.)

The rules have been eased a little since that time, but they are still strict.

Your income is the focal point of this issue.  This is known as the affidavit of support requirement.

These are four concerns you need to think about before filing to immigrate your fiancé.  By assessing them in advance, you will have a better idea if he can qualify for a green card via marriage.

When it comes to permanent residence, immigrants and their family members need to keep up with legal changes.

Laws change.

If you hear something that might harm his case, or if you are not sure how the change might affect his case, you should contact an immigration lawyer.

Don’t take chances.

If you have an ongoing case right now, and you have immediate case-specific questions, you may want to visit our Green Cards And Permanent Residence Attorney Services page for more information.

Or you might want to schedule a 1-On-1 Personalized Strategy And Planning Session to discuss the ins and outs of your case in depth.