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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.

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.

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.

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.

Your boyfriend’s case may be quite different.

In a strange quirk of law, since 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 fiance’s situation.

Not definite.  But possible.

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

How he entered – with or without inspection – at the age of 5 is a critical issue.

But that entry, 17 years ago, 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.

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.

In short, 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.

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 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.

It appears, your fiance has accumulated four years of unlawful presence in the United States.  (Until he turned 18, he is exempt from this rule.)

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

Two side notes before closing.

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, the two of you will need to jointly file to remove this conditional status, at which point he becomes a full green card holder.

In addition, I strongly encourage you to stay alert for modifications to the permanent resident process in the future.

The public charge requirement is one such issue.  Beginning in the summer of 2018, the government has attempted to impose a complex procedure requiring applicants to show proof they will not beome dependent on government assistance if granted permanent resident status.

Your income and living expenses are part of this calculation.

This issue is being battled in federal courts throughout the country.  One week, the rule is disallowed.  The next week, the law is deemed valid.

When it comes to permanent residence, immigrants need to keep up with legal changes.

If you hear something that might harm 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.