Green Card Approved After Overstay: How Immediate Relatives Can Adjust Status Despite Unauthorized Stay
- Alexander R. Vail
- 4 days ago
- 11 min read
Can you get a green card if you overstayed your visa? Yes, under specific circumstances. When M.A.A., a native and citizen of Mexico, remained in the United States after her TN nonimmigrant status expired and worked without authorization, she believed these violations would permanently bar her from obtaining lawful permanent residence. However, as the spouse of a U.S. citizen, an immediate relative, M.A.A. was exempt from certain bars to adjustment under section 245(c) of the Immigration and Nationality Act. In Matter of M.A.A. (2025), Attorney Alexander R. Vail successfully demonstrated this exemption, and U.S. Citizenship and Immigration Services approved M.A.A. and her spouse for permanent residence. They are now lawful permanent residents of the United States.
LAWFUL PERMANENT RESIDENCE STATUS GRANTED
Matter of M.A.A. (2025)
M.A.A., a native and citizen of Mexico, had travelled frequently to and from the United States as a tourist. But after her most recent entry, she was offered a job and changed her status to that of a TN nonimmigrant. After her authorized period of stay expired, she nonetheless remained in the United States. Many years later, she fell in love with a U.S. citizen. After they married, M.A.A. and her spouse consulted with Alex to better understand the adjustment of status process. Alex explained that M.A.A. was concerned that having overstayed plus working without authorization would not apply to her because of her status as an "immediate relative." When preparing the filing, Alex convinced M.A.A. that section 245(a) of the Immigration and Nationality Act (hereinafter referred to as the "INA"), because M.A.A. was concerned that having overstayed plus working without authorization would not be an issue, Alex assured her that the bars to adjustment set out in section 245(c) of the INA would not apply to her because of her status as an "immediate relative." When preparing the filing, Alex ensured the bona fides of the marriage were well-documented and that all materials needed to establish statutory eligibility were included. Alex prepared M.A.A. and her spouse for the interview that U.S. Citizenship and Immigration Services ("USCIS") scheduled, and M.A.A.'s adjustment application was approved shortly after the interview. M.A.A. is now a lawful permanent resident of the United States.
Can You Adjust Status After Overstaying Your Visa?
The short answer: Immediate relatives of U.S. citizens can adjust status despite overstaying, but other visa categories generally cannot. This distinction is crucial for understanding your eligibility.
M.A.A. initially entered the United States as a tourist on multiple occasions. During one visit, she received a job offer and changed her status to TN nonimmigrant status, available to Canadian and Mexican professionals under the USMCA trade agreement.
What happened when her TN status expired: M.A.A. remained in the United States beyond her authorized stay and continued working. This created two serious immigration problems:
Unlawful presence: Remaining in the U.S. after your authorized period ends
Unauthorized employment: Working without valid work authorization
Years later, M.A.A. married a U.S. citizen. When the couple consulted Attorney Vail, M.A.A. was understandably worried that her past violations would prevent her from adjusting status without leaving the United States or potentially bar her from permanent residence entirely.
What is Section 245(c) Bars to Adjustment of Status?
Section 245(c) of the Immigration and Nationality Act lists specific situations that can prevent someone from adjusting status to lawful permanent residence while in the United States. These bars typically require the individual to depart the country and process through consular processing or in some cases, make them completely ineligible.
The four main section 245(c) bars are:
Entry without inspection: Individuals who entered the U.S. without being admitted or paroled by an immigration officer (except in limited circumstances)
Failure to maintain lawful status: Those who failed to continuously maintain their nonimmigrant status (with certain exceptions)
Unauthorized employment: Individuals who accepted unauthorized employment before filing their adjustment application (with exceptions)
J-1 two-year requirement: Certain J-1 exchange visitors subject to the foreign residence requirement who haven't fulfilled it or received a waiver
M.A.A. faced bars #2 and #3: she had failed to maintain lawful status after her TN expired, and she had worked without authorization. For most applicants, these violations would require consular processing abroad rather than adjustment of status in the United States.
Who Qualifies as an Immediate Relative Under Immigration Law?
Immediate relatives are the most favored immigration classification, receiving significant benefits not available to other family-based applicants. Under U.S. immigration law, immediate relatives include only three categories:
Spouses of U.S. citizens (this was M.A.A.'s qualifying relationship)
Unmarried children under 21 years of age of U.S. citizens
Parents of U.S. citizens (only if the U.S. citizen is at least 21 years old)
Important distinction: Spouses of lawful permanent residents (green card holders) are NOT immediate relatives; they are classified as family-preference applicants and do not receive the same exemptions from adjustment bars. This distinction determines whether someone can adjust status despite status violations.
The Critical Exemption: Immediate Relatives and Section 245(c) Bars
Here is the key legal principle that resolved M.A.A.'s case: Immediate relatives of U.S. citizens are exempt from section 245(c) bars related to failing to maintain status and unauthorized employment, provided they were initially admitted or paroled into the United States.
This exemption is codified in section 245(a) of the INA, which allows immediate relatives to adjust status even when they have:
Overstayed their visa or authorized period of stay
Failed to maintain their nonimmigrant status
Worked without authorization (in certain circumstances)
Fallen out of lawful status for other reasons
The one non-negotiable requirement: You must have been initially admitted or paroled by an immigration officer at a port of entry. Those who entered without inspection (crossed the border illegally) generally cannot benefit from this exemption, even as immediate relatives, unless they qualify for specific exceptions.
Why this matters: Family-preference applicants, employment-based applicants, and diversity visa applicants do not receive these exemptions. They must have maintained lawful status and cannot have worked without authorization, or they must process through a U.S. consulate abroad (consular processing) rather than adjusting status domestically.
Attorney Vail's Strategic Legal Analysis
When M.A.A. and her U.S. citizen spouse consulted with Attorney Alexander R. Vail, the critical insight was identifying that M.A.A. qualified as an immediate relative and was therefore exempt from the section 245(c) bars she feared would prevent her adjustment.
Attorney Vail explained three crucial points:
First: M.A.A. had been admitted to the United States as a tourist and later as a TN nonimmigrant. This meant she satisfied the requirement of having been admitted or paroled, making her eligible for the immediate relative exemption.
Second: As the spouse of a U.S. citizen, M.A.A. qualified as an immediate relative. This meant that despite her overstay and unauthorized employment, she was exempt from the section 245(c) bars that would have prevented adjustment.
Third: M.A.A. could pursue adjustment of status without departing the United States. She did not need to return to Mexico for consular processing, and she did not need any waivers for her status violations.
This legal guidance transformed M.A.A.'s understanding of her situation. What she believed would be an insurmountable obstacle was actually not a bar to her adjustment because of her immediate relative status.
How Do You Prove a Marriage is Legitimate for Immigration?
When a foreign national seeks a green card through marriage to a U.S. citizen, USCIS carefully scrutinizes the relationship to ensure the marriage is bona fide, meaning it was entered into for genuine reasons, not solely to obtain immigration benefits.
This scrutiny intensifies when:
The foreign spouse has immigration violations (like M.A.A.'s overstay)
The couple married shortly after the foreign spouse faced immigration problems
There is a significant age difference between spouses
The couple has limited time together or limited shared history
Evidence Attorney Vail compiled to prove marriage legitimacy:
Joint financial documentation: Joint bank accounts, joint credit cards, joint leases or mortgages, joint utility bills, joint tax returns, joint loans, insurance policies listing each other as beneficiaries.
Commingled assets: Evidence showing the couple shares financial responsibilities and makes joint financial decisions.
Photographs: Pictures showing the relationship timeline, family gatherings, holidays, vacations, daily life together, wedding photos, integration with each other's families.
Third-party affidavits: Sworn statements from friends, family members, neighbors, coworkers, or religious leaders attesting to the genuine nature of the relationship.
Travel documentation: Evidence of trips taken together, shared hotel reservations, travel itineraries.
Birth certificates: If the couple has children together, birth certificates listing both parents.
Communication records: Evidence showing the development and continuation of the relationship (particularly important for couples who had periods apart).
Attorney Vail ensured M.A.A.'s application thoroughly documented the bona fides of her marriage, addressing potential USCIS concerns and demonstrating that the relationship was genuine regardless of M.A.A.'s immigration history.
What Happens at a Marriage-Based Green Card Interview?
USCIS schedules adjustment of status interviews for marriage-based cases to verify the legitimacy of the marriage and confirm eligibility for permanent residence. Both spouses must attend the interview together.
What to expect during the interview:
Questions about your relationship: How you met, when you started dating, your wedding details, daily routines, living arrangements, future plans
Questions about your home: Layout of your residence, furniture, sleeping arrangements, household chores, who pays which bills
Questions about daily life: Work schedules, favorite restaurants, hobbies, friends, family relationships, recent activities
Financial questions: Bank accounts, who works, income sources, how bills are paid, major purchases
Background questions: Previous marriages, immigration history, criminal history, prior relationships
The immigration officer assesses:
Whether both spouses answer questions consistently
If the couple demonstrates genuine knowledge of each other's lives
Whether their body language and interaction appear natural
If the documentary evidence aligns with their testimony
Attorney Vail prepared M.A.A. and her spouse thoroughly for the interview, ensuring they understood the types of questions, the importance of consistent answers, and how to remain composed throughout the process. This preparation contributed to their successful approval.
Successful Outcome: Green Cards Approved
Following the interview, USCIS approved M.A.A.'s adjustment of status application shortly thereafter. The approval extended to both M.A.A. and her spouse, making them both lawful permanent residents of the United States.
As green card holders, M.A.A. and her spouse now have:
The right to live permanently anywhere in the United States
The right to work for any employer in any field
Protection under all U.S. laws at federal, state, and local levels
Eligibility to sponsor certain family members for immigration benefits
Eligibility to apply for U.S. citizenship after 3 years (for spouses of U.S. citizens)
Ability to travel internationally with U.S. green cards (with some restrictions on time abroad)
Access to federal benefits and programs
Important note for couples married less than 2 years: If a couple has been married less than two years when the foreign spouse receives a green card, they receive conditional permanent residence valid for two years. Before the two-year anniversary, they must file Form I-751 to remove the conditions and receive a 10-year green card. Attorney Vail assists clients with this process to ensure continued permanent residence.
Common Questions About Overstay and Adjustment of Status
Q: Can I adjust status if I overstayed my visa?
A: It depends on your classification. Immediate relatives of U.S. citizens (spouses, unmarried children under 21, and parents of adult U.S. citizens) can adjust status despite overstaying, provided they were initially admitted or paroled. Other categories generally cannot adjust status after overstaying.
Q: Will working without authorization prevent me from getting a green card?
A: Not if you're an immediate relative of a U.S. citizen. The section 245(c) exemption covers unauthorized employment for this category. However, unauthorized employment does bar adjustment for family-preference applicants and most other categories.
Q: Do I need a waiver for my overstay if I'm married to a U.S. citizen?
A: Not for adjustment of status purposes. Immediate relatives are exempt from section 245(c) bars, so no waiver is needed for overstay or unauthorized employment. However, if you have other inadmissibility issues (criminal history, fraud, etc.), you may need a separate waiver.
Q: Does overstaying trigger the 3-year or 10-year bar?
A: The 3-year and 10-year bars only apply if you leave the United States. If you overstay but then adjust status as an immediate relative without departing, these bars never trigger. However, if you leave the U.S. after accruing unlawful presence, you may trigger these bars.
Q: Can the spouse of a green card holder adjust status after overstaying?
A: No. Spouses of lawful permanent residents are family-preference applicants, not immediate relatives. They do not receive the section 245(c) exemptions and generally cannot adjust status after overstaying. They must either wait for the green card holder to naturalize (making them immediate relatives) or process through consular processing abroad.
Key Takeaways: Immediate Relatives and Adjustment After Overstay
1. Immediate relative status is powerful: Being the spouse, unmarried child under 21, or parent of a U.S. citizen provides significant advantages not available to other immigration categories.
2. Exemptions only apply to certain bars: Immediate relatives are exempt from section 245(c) bars related to status violations and unauthorized employment, but they are not exempt from other grounds of inadmissibility like criminal violations, fraud, or prior deportations.
3. Initial admission is required: You must have been initially admitted or paroled by an immigration officer. Those who entered without inspection generally cannot benefit from the exemption.
4. Marriage legitimacy matters: Thorough documentation of a bona fide marriage is essential, especially when the foreign spouse has immigration violations that might raise USCIS concerns.
5. Legal guidance prevents mistakes: Many people incorrectly believe that status violations automatically disqualify them from adjusting status. Experienced immigration attorneys identify available exemptions and pathways that clients may not know exist.
Attorney Alexander R. Vail's Expertise in Complex Adjustment Cases
Matter of M.A.A. demonstrates Attorney Vail's comprehensive understanding of adjustment of status law and his ability to identify critical exemptions. This case required:
Precise legal analysis of section 245(c) bars and immediate relative exemptions
Clear explanation to a concerned client about her eligibility despite past violations
Comprehensive documentation of marriage legitimacy to address potential fraud concerns
Strategic compilation of evidence establishing statutory eligibility
Thorough interview preparation for both spouses
Professional representation resulting in rapid post-interview approval
Attorney Vail's practice emphasizes accurate legal analysis that provides clients with realistic assessments of their cases. M.A.A. was understandably worried that her overstay and unauthorized employment would prevent her from obtaining permanent residence. Attorney Vail's explanation of the immediate relative exemptions not only eased her concerns but also provided a clear, lawful pathway to achieve her immigration goals.
This case also highlights the importance of thorough marriage documentation and interview preparation. By anticipating USCIS concerns and preparing comprehensive evidence, Attorney Vail facilitated a successful outcome despite the complexities of M.A.A.'s immigration history.
Marriage-Based Green Card Services in Las Vegas, Nevada
If you or your spouse is seeking lawful permanent residence through marriage to a U.S. citizen, particularly with concerns about overstay, status violations, or other complications, experienced legal representation is essential. The Law Office of Alexander R. Vail provides comprehensive marriage-based immigration services, including:
Marriage-based immigrant visa petitions (Form I-130) for spouses of U.S. citizens
Adjustment of status applications (Form I-485) for spouses physically present in the U.S.
Section 245(c) bars analysis and immediate relative exemption evaluation
Bona fide marriage documentation and evidence compilation
Marriage interview preparation and representation
Responses to Requests for Evidence (RFEs) regarding marriage legitimacy or eligibility
Removal of conditions on residence (Form I-751) for conditional green card holders
Inadmissibility waivers when required (Forms I-601, I-601A)
Consular processing for spouses processing abroad
K-1 fiancé visas and subsequent adjustment following marriage
Attorney Alexander R. Vail has successfully represented numerous couples in marriage-based immigration cases, including complex situations involving overstays, status violations, prior immigration issues, and concerns about marriage legitimacy. Every case receives thorough legal analysis to identify the most effective strategy and comprehensive preparation to achieve successful outcomes.
About the Law Office of Alexander R. Vail
Located in Las Vegas, Nevada, the Law Office of Alexander R. Vail provides dedicated representation in marriage-based and other family immigration matters.
Accurate legal analysis of complex immigration situations
Clear communication with clients about their eligibility and options
Strategic case planning to achieve optimal outcomes
Thorough preparation of applications with comprehensive evidence
Professional representation before USCIS
Whether you face straightforward family immigration matters or complex situations involving status violations, Attorney Vail provides the expertise and dedication needed to navigate the immigration system successfully. Call us at (725) 221-5998 or reach us online for a free consultation.
This case summary is provided for informational purposes only and does not constitute legal advice. Every immigration case depends on unique facts and circumstances. Past results do not guarantee future outcomes. If you need legal assistance, please contact a qualified immigration attorney to discuss your specific situation.