Posted on July 9, 2008 by Robert A. Kraft

A foreign national who legally entered the United States, overstayed the authorized stay, and is married to a U.S. citizen does not derive automatic lawful permanent status. Yet, by filing the appropriate paperwork with the Immigration Service, the foreign national may be eligible to attain immigration benefits and become a lawful permanent resident, even if the foreign national overstayed the visa and is out of status. Generally, foreign nationals who enter with a visa (i.e., are inspected and admitted), overstay their permissible stay, and have a valid marriage to a U.S. citizen, are eligible to adjust their status in the U.S. based on marriage to a U.S. citizen.   The process changes if a foreign national unlawfully entered the U.S., and married a U.S. citizen.  The foreign national cannot adjust in the U.S. but will have to consular process.  Unlawful entry occurs when an individual enters the U.S. without inspection at a port of entry. If the foreign national accrues unlawful presence of more than a year, their departure from the U.S. will trigger a ten year bar on returning to the United States.  A waiver for the ten year bar must be filed to show “extreme hardship” to a U.S. citizen or lawful permanent resident spouse.  If planning on consular process, the foreign national should plan on being outside of the U.S. for more than a year.  

If you are married to a U.S. citizen and would like more information on how to obtain permanent residence, please call us at 214-999-9999.

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