Can I Be Eligible for Adjustment of Status With an Expired Visa?

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Adjustment of status (sometimes called “AOS”) is a procedure allowing some immigrants who are already in the United States and eligible for permanent residence (a green card) to apply for and receive a green card without leaving the United States. However, this procedure is not open to every immigrant currently living in the United States. Some people, depending on their current visa or immigration status, are required by law to leave the United States to attend their green card (immigrant visa) interview at a U.S. embassy or consulate in their home country.

If you are in the United States with an expired visa, then you most likely are not eligible to apply for adjustment of status. This procedure is mainly open to people who not only are eligible for green cards, but are in the United States with a valid, unexpired visa, have not worked illegally, and have not spent time out of lawful status. A few exceptions do exist, however, as discussed below.

If you realize that your visa is about to expire, and you’re not quite ready to apply for adjustment of status and you don’t fit into an exception, look into whether you can apply for an extension or renewal of your visa. That way you may be able to hang onto your eligibility to adjust status for when the time is right.

Make Sure Your Visa Has Really Expired

First, let’s make sure you’re looking at the right expiration date. It’s normally shown on your Form I-94 Arrival/Departure Record you were given upon entry to the United States. If you entered as a student, the I-94 may say “D/S,” for “duration of status,” meaning you can stay until you’ve finished your studies.

The expiration date on your original visa – that is, the document with which you entered the United States – does not indicate how long you can stay in the United States. It shows only how long you can use that visa for U.S. entry. Again, it’s the date on your I-94 that you should be looking at.

Exceptions Allowing People With Expired Visas to Adjust Status

Despite the general rule that people whose authorized stays have expired cannot use the adjustment of status procedure to get their green card, the following types of people may be able to stay in the United States and adjust status:

  • Immediate relatives of U.S. citizens, namely their spouses, parents, and unmarried minor children (under age 21). Immediate relatives may adjust status even with an expired visa – but not if they entered the United States illegally, without a visa or other authorized form of entry.
  • Immigrants who qualify under an old law known as Section 245(i), by having had a visa petition or labor certification filed on their behalf by January 14, 1998; or by having been physically present in the United States on December 21, 2000 and had a visa petition or labor certification on file by April 30, 2001.
  • Immigrants applying for green cards on the basis of employment who have spent no more than 180 days out of status – for example, whose visa expired up to 180 days before submitting the adjustment of status application.

Figuring out whether you fit into one of these exceptions can be difficult, and depend on more details in your personal situation than we can describe at length here. If you have any questions about the matter, you’d be wise to consult an experienced immigration attorney.

The Risks of Remaining in the United States With an Expired Visa

If you are in the United States beyond to your authorized stay, and haven’t yet submitted your adjustment of status application, and you decide to stay in the United States, you will be taking a huge risk.

Staying past your authorized date without an extension or a pending adjustment of status application on file may be grounds for penalties that will affect your ability to adjust status in the future. Or if you’re caught, your overstay could result in your removal from the United States and a ten-year bar on returning.

Do You Need to Renew Your Visa While Waiting for Approval of Adjustment of Status?

Once you have submitted your application to adjust status, you will receive a work permit and can legally remain in the United States until a decision is made on your green card application. At that point, it probably won’t matter if your visa expires while you wait. (The wait could be several months long.)

Nevertheless, just in case your adjustment of status application is denied, maintaining your underlying visa can be a safe bet. But it’s only possible in visa categories that allow “dual intent,” meaning that it won’t matter that you’re promising to stay in the U.S. temporarily while simultaneously trying to find a way to stay permanently.

Getting Help

If you are in the United States with an expired visa but believe you are eligible for permanent residence, by all means contact an immigration attorney. The attorney can examine the facts of your case and come up with an appropriate strategy. You may find after speaking with a lawyer that you will either need to leave the country and reapply for a new visa or simply apply for an extension of your current visa, both of which your lawyer can help you to do.

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