If I Accrued Unlawful Stay, Will I Be Eligible for Adjustment of Status?

If you are currently in the U.S. unlawfully, then it's unlikely you will qualify for adjustment of status. This procedure is mostly open to people whose visa or other status is still valid. Exceptions do exist, however, such as if you entered the U.S. with inspection (such as with a visa or visa waiver) and are applying for a green card based on being the immediate relative of a U.S. citizen. In such a case, your unlawful presence will not count against you.

If You're in the U.S. on a Visa, Try to Maintain Valid Visa Status

Perhaps you came to the United States on a temporary visa (known as a "nonimmigrant" visa), as a tourist, H-1B or other worker, exchange student, or some other category. In such a case, you are required to either leave before your authorized stay expires, or successfully apply for an extension of your stay. You'll find the date you are expected to leave by on the little I-94 card that the U.S. border official placed within your passport when you entered.

If you apply for a renewal, be sure to submit the renewal application (in most cases, using Form I-539) to U.S. Citizenship and Immigration Services (USCIS) before the date shown on your I-94 card. Once you've submitted your renewal application, you can lawfully stay in the U.S. while awaiting a decision.

Depending on the type of visa you arrive on, and how many renewals you receive, your authorized stay may last anywhere from a few months to several years.

If you're lucky enough to become eligible for a U.S. green card (permanent residence) while you're here on a nonimmigrant visa, you may even be able to submit what's called an "adjustment of status" application before your visa expires, and receive a green card here. If, however, your visa runs out before you turn in your application for adjustment of status, you are considered to be in the country unlawfully, and can apply for adjustment of status only if you fit within one of a few narrow exceptions.  

Penalties for Accruing Unlawful Stay 

The law has created various penalties for people who stay in the United States unlawfully and then attempt to apply for a green card. As stated above, you may become ineligible to adjust status -- that is, apply for a green card from within the United States. In theory, that shouldn't stop you from traveling to a U.S. consulate in your home country and completing your green card application there. (Referred to as using the "consular processing" procedure rather than the "adjustment of status" procedure.)

But here's where the penalties for unlawful stay kick in and create problems: If you have spent more than 180 days in the United States unlawfully, and then leave (most likely for your immigrant visa/green card interview), you will be required to spend three years outside the United States before returning. If your unlawful stay was for one year or more, than you face a ten-year bar on returning. A waiver (legal forgiveness) is available, but it's difficult to qualify for.

Getting Help

If you have accrued any unlawful stay in the United States at all, you must consult an experienced U.S. immigration attorney before submitting any application to USCIS or deciding on an immigration strategy. The attorney can analyze how much of your stay was truly unlawful and whether you may be eligible for adjustment of status. If so, the attorney can assist you in preparing an application. If your only choice in applying for a green card is consular processing, the attorney will advise you on your chances of receiving a waiver allowing you to avoid the three- or ten-year time bars, and help you prepare a waiver application as well as the immigrant visa application.