U.S. Citizenship and Immigration Services (USCIS) is exceedingly stringent regarding any prior violations of U.S. immigration laws when reviewing green card applications.
If you have ever overstayed a visa, stayed for more than 90 days after entering the United States under the Visa Waiver Program (also known as the Electronic System for Travel Authorization (ESTA) program), been in the United States without legal immigration status, or entered the United States illegally, you may face significant challenges in obtaining a green card.
If you have been in the United States without legal immigration status, you may be prohibited from applying for a green card from within the country and/or from reentering the country if you depart. The duration of your absence from the United States is contingent upon the duration of your lack of legal immigration status.
If you find yourself in this predicament, you may be eligible to submit an application for a “waiver of inadmissibility.” Waivers necessitate evidence that your family member would endure severe hardship if you were prohibited from being in the United States together. It is not a simple task to secure a waiver; however, it is not impossible. It is crucial to present a compelling argument.
Overstays & Unlawful Presence:
If you enter the United States with a valid visa (e.g., a tourist or student visa) and remain in the country for less than 180 days, your visa will be deemed null and void. In order to reenter the United States, you will need to obtain a new visa in your home country.
In this situation, you remain eligible to return to the United States at any time, provided that you obtain the necessary visa. Nevertheless, the process of obtaining a new visa following an overstay on a previous visit will be more difficult, as you will be required to demonstrate to the consular officer that you will not repeat the overstay.
You will not be eligible to use the Visa Waiver Program in the future if you enter the United States using the Visa Waiver Program and remain for more than 90 days, despite being from one of the eligible countries. If you desired to return to the United States, you would be required to submit an application for a visa at the nearest U.S. embassy or consulate.
If you have exceeded 180 days of unlawful presence, which means that you have exceeded your visa’s validity by 181 days or more, you will be prohibited from reentering the United States for a specified period. You will be prohibited from entering the United States for a period of three years if you were unlawfully present for a period ranging from 180 to 365 days. If you were unlawfully present in the United States for a period exceeding one year, you will be prohibited from returning for a period of ten years. (These are frequently referred to as the “three- and ten-year bars” or simply the “re-entry bars.”)
Nevertheless, if you have overstayed your visa or entered the United States under the Visa Waiver Program, you are still eligible to apply for a marriage-based green card without having to leave the country, provided that you are married to a U.S. citizen. (For additional details regarding this procedure, please refer to “Start to Finish: Green Cards for Spouses of U.S. Citizens Living in the United States…”)
Check Also: USCIS Green Card – Complete Explanation
Traveling out of the country after overstaying previous visa:
One of the few categories of immigrants who are permitted to register for (and receive) a green card without leaving the United States is family members of U.S. citizens, regardless of their current legal immigration status. Nevertheless, they were required to have entered the United States legally.
If you fall under this category and wish to travel outside of the United States while your green card application is being processed, you may apply for a travel permit (officially referred to as an Advance Parole Travel Document). You will not be subject to the re-entry bars for unlawful presence, even if you would have been unable to re-enter the United States ordinarily. However, it is crucial to comprehend that this policy, which is predicated on a 2012 decision of the Board of Immigration Appeals, is not consistently enforced throughout the nation and may be modified at any moment, including while one is abroad.
It is advisable to delay traveling outside the United States until you have received your green card if you have been in the country without legal status.
Illegal Entry:
The ramifications of unlawful entry are further complicated. You are unable to apply for a green card from within the United States if you entered the country illegally, as opposed to overstaying. However, it can be risky to flee the United States in order to apply for a green card from abroad. As previously mentioned, a re-entry restriction of 3 or 10 years will be imposed if you have been unlawfully present for more than 180 days.
However, if you entered the United States illegally and departed before remaining for 180 days, you would not be subject to a re-entry prohibition and would be able to apply for a green card through the U.S. embassy or consulate in your home country.
It is also crucial to remember that if you were deported from the United States and subsequently re-entered illegally, you would be permanently prohibited from entering the country.
USCIS Inadmissibility Reasons:
The U.S. Citizenship and Immigration Services (USCIS) can find a person inadmissible for various reasons, even if they meet eligibility requirements. Some of the most common USCIS inadmissibility reasons include:
- Health-related grounds (e.g., communicable diseases or missing vaccinations)
- Criminal activity (e.g., crimes involving moral turpitude or drug offenses)
- Security threats or espionage
- Immigration violations, such as overstaying a visa or working without authorization
- Public charge issues (inability to financially support oneself)
- Fraud or misrepresentation in immigration applications
- Unlawful presence in the U.S.
Each ground has its own legal implications, and some may qualify for a waiver under certain circumstances.
Adjustment of Status Denied:
Getting your adjustment of status denied whether through family-based or employment-based petitions can be devastating. Many denials are linked to preventable issues:
- Failure to meet eligibility requirements (e.g., invalid marriage documentation)
- Missing documentation or incomplete Form I-485
- Prior removal or deportation orders
- Violation of visa conditions (e.g., unauthorized work)
- Inadmissibility for immigration fraud or criminal history
Denials can occur before or after the green card interview, depending on what USCIS discovers during background checks or personal questioning.
Green Card Denied After Interview:
A green card denied after interview is not the end of the road—but it is serious. The USCIS officer may deny your application if they find discrepancies or inadmissibility issues, such as:
- Inconsistent answers between petitioner and applicant (in marriage-based cases)
- Evidence of prior immigration violations
- Unlawful presence or visa overstays
- Signs of a sham marriage or relationship fraud
- Misrepresentation in submitted documents
If denied, applicants typically receive a Notice of Decision explaining the reason and whether the case can be reopened, appealed, or refiled.
Unlawful Presence Bar:
The unlawful presence bar applies to individuals who stayed in the U.S. illegally for more than 180 days:
- 180–365 days of unlawful presence → triggers a 3-year bar
- 365+ days → results in a 10-year bar
Departing the U.S. after this unlawful stay activates the bar, making you inadmissible unless you qualify for a waiver. This is one of the leading causes of green card denials for applicants who violated visa terms in the past.
Misrepresentation in Immigration Applications:
Providing false or misleading information on immigration forms can lead to severe consequences, including a lifetime ban.
Misrepresentation in immigration applications includes:
- Fake documents (e.g., marriage, employment letters)
- Lying on visa or green card applications
- Using another identity
- Omitting previous immigration violations or criminal history
Even unintentional errors may be interpreted as immigration fraud, making it vital to be accurate and honest in all USCIS forms and interviews.
Green Card Revoked Due to Visa Overstay:
Even after a green card is issued, it can be revoked if USCIS later finds that you violated immigration law—most commonly by:
- Overstaying a visa prior to obtaining permanent residency
- Fraudulently entering the country or misusing a visa
- Failing to disclose critical information during the application process
In some cases, a green card revoked due to visa overstay may trigger removal (deportation) proceedings, especially if tied to misrepresentation or unlawful presence.
Immigration Fraud Consequences:
Immigration fraud consequences can be life-altering. Depending on the nature of the violation, you may face:
- Denial of any future immigration benefits
- Removal from the U.S.
- Lifetime inadmissibility
- Federal criminal charges (for serious fraud)
- Revocation of status or permanent residency
Those who knowingly aid or engage in immigration fraud—like fake marriages—are particularly at risk.
I-485 Denial Reasons:
Form I-485, Application to Register Permanent Residence or Adjust Status, is the cornerstone of green card applications. However, I-485 denial reasons include:
- Errors or missing documents
- Applicant is not eligible for the underlying immigration category
- Applicant is inadmissible
- Failing the medical exam or background check
- Immigration fraud or misrepresentation
- Unauthorized employment or visa overstay
Always double-check your application and consult with an attorney when in doubt.
Waiver for Immigration Violations:
If you’ve been found inadmissible, don’t lose hope. You may be eligible for a waiver for immigration violations, such as:
- Form I-601: Waiver of Grounds of Inadmissibility
- Form I-601A: Provisional Waiver for unlawful presence
- Form I-212: Permission to reapply after removal
Waivers generally require you to demonstrate extreme hardship to a U.S. citizen or lawful permanent resident relative, and are evaluated case by case.
Waivers of Inadmissibility:
As previously mentioned, if you have been unlawfully present in the United States for more than 180 days, you will be required to depart the country in order to register for a green card at a U.S. embassy or consulate. You will need to petition for a “waiver of inadmissibility” to return to the United States in order to avoid the three- and ten-year re-entry bars.
In order to be eligible for a waiver, you must demonstrate that your “qualifying relative” will endure “extreme hardship” if you are denied permission to reside in the United States. A qualifying relative for this specific form of waiver—known as a “unlawful presence waiver”—may be a spouse or parent who is either a U.S. citizen or a U.S. green card holder. (You may include information regarding the potential impact of your children’s hardships on your spouse; however, children are not considered qualifying relatives for unlawful presence waivers on their own.)
You must demonstrate that the hardship your relative would endure is “extreme” when submitting your waiver application. There must be a compelling argument that your relative will suffer if you are not permitted to live in the United States, as well as a strong reason why you and your relative are unable to live together in your home country.
In the past, it was necessary to depart the United States and submit an application for a waiver at the U.S. embassy or consulate at the same time as the green card application. Today, however, it is possible to submit an application for a “provisional waiver” prior to departing the United States. This reduces the duration of your time spent outside of the United States and provides you with a degree of assurance that your waiver will be approved.
USCIS’s waiver policy has undergone a significant transformation in recent years. Prior to August 2016, it was necessary to be the spouse of a U.S. citizen in order to obtain a provisional waiver prior to departing the United States. However, spouses of green card holders are now regarded in the same manner as spouses of U.S. citizens. Furthermore, waivers were previously exclusively available to individuals who were applying for a green card based on marriage.
However, a provisional waiver is now available to all individuals who are applying for a green card. The time it takes for USCIS to process provisional unlawful presence certificates has increased to as long as 8 months as a result of the expansion in the number of individuals eligible for them. Please ensure that you have the most recent information from USCIS regarding the eligibility for a provisional waiver.
Your marriage-based green card application may be complicated by the following: overstaying your visa, remaining in the United States without immigration status, and entering the United States illegally. Nevertheless, as previously mentioned, past immigration violations may not inherently obstruct your eligibility for a family-based or marriage-based green card.
Frequently Asked Questions:
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Can an immigration violation lead to a green card denial?
Yes. USCIS can deny a green card application if there’s evidence of immigration violations, especially those involving fraud, unlawful presence, or criminal activity.
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Can I apply for a waiver if I violated immigration laws?
In some cases, yes. Waivers of inadmissibility may be available based on family hardship, time spent in the U.S., or other humanitarian factors.
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Will overstaying a visa affect my green card application?
Yes. Unlawful presence of more than 180 days can trigger bars to reentry (3 or 10 years) and may result in denial unless a waiver is granted.
