Adjustment of Status Approved Under Section 245(a): Why a Visa Overstay Did Not Stop a Marriage-Based Green Card

A visa overstay is one of the most common fears people bring to a first consultation, the assumption that falling out of status has already closed the door to a green card for good. For the spouse of a U.S. citizen, that assumption is often wrong. F.L.H.C.’s case shows how a lawful entry on a simple tourist visa, even years earlier and even with an overstay on the record, can still lead to lawful permanent residence when the right legal path is used.

Official Case Review: Lawful Permanent Residence Status Granted

Matter of F.L.H.C. (2025)

F.L.H.C. is a native and citizen of Mexico who entered the United States many years earlier as a tourist. After marrying a U.S. citizen, she and her spouse consulted with Alex for guidance on how to obtain permanent residence for F.L.H.C. Alex explained that F.L.H.C. did not have to depart the United States to obtain permanent residence, a departure that would have triggered adverse immigration consequences, but instead could pursue adjustment of status under section 245(a) of the Immigration and Nationality Act (“INA”), despite her having overstayed the authorized period set out on her Form I-94.

Alex assisted F.L.H.C. in preparing and filing her adjustment application, which included identifying and securing the necessary supporting documentation to establish the bona fides of the marriage and to address any potential grounds of inadmissibility. When the time came for the interview, Alex ensured F.L.H.C. and her spouse were well prepared to address all potential lines of questioning. U.S. Citizenship and Immigration Services (“USCIS”) approved the application after the interview. F.L.H.C. is now a lawful permanent resident of the United States.

What This Case Means: Overstaying a Visa Does Not Automatically Disqualify You From a Green Card

A lot of people assume that once a visa expires, or once the date on a Form I-94 passes, any hope of getting a green card is gone. F.L.H.C.’s case shows why that assumption is often wrong, at least for a specific and common category of applicant: the spouse of a U.S. citizen.

The Immigration and Nationality Act generally makes it harder to adjust status in the United States if an applicant has fallen out of status, worked without authorization, or otherwise violated the terms of a visa. But Congress carved out an important exception for “immediate relatives” of U.S. citizens, a category that includes spouses. Under INA Section 245(c), most of the bars that would trip up other applicants simply do not apply to immediate relatives. An overstay on its own is not a bar to adjustment of status for someone in F.L.H.C.’s position, so long as she was inspected and admitted into the country in the first place, which she was, as a tourist.

That last point matters. Adjustment of status under Section 245(a) generally requires that the applicant was “admitted or paroled” into the United States, meaning an immigration officer at a port of entry allowed the person in. F.L.H.C. met that requirement because she came in on a legitimate tourist visa. Someone who entered without inspection, for example by crossing the border without being seen by an officer, is in a different legal situation and usually cannot use this same path, even if married to a U.S. citizen.

Why Leaving the Country Would Have Been Risky

Alex’s explanation to F.L.H.C. that departing the United States could have triggered “adverse immigration consequences” points to a specific and serious rule under the INA: the unlawful presence bars. Under Section 212(a)(9)(B), a person who accrues more than 180 days of unlawful presence in the United States and then departs can be barred from returning for three years. More than a year of unlawful presence and departure can trigger a ten-year bar. These bars are triggered by leaving the country, not by simply staying, which is why consular processing, the alternative path that requires an interview at a U.S. consulate abroad, is often far riskier for someone who has overstayed. Adjustment of status lets an eligible applicant complete the entire green card process without ever leaving the United States, avoiding that risk altogether.

Adjustment of Status Versus Consular Processing

These are the two main roads to a green card for someone who married a U.S. citizen, and which one applies depends heavily on how and when the person entered the country and whether they have accrued unlawful presence.

Adjustment of status is available to someone who is physically present in the United States after having been lawfully admitted or paroled, and who meets the other statutory requirements. The applicant files Form I-485 along with supporting evidence, and if everything is in order, attends an interview at a USCIS field office without ever needing to leave the country.

Consular processing is used when the applicant is outside the United States, or when they are inside the country but not eligible to adjust status here, often because they entered without inspection. This route requires an interview at a U.S. embassy or consulate abroad and can expose an applicant with prior unlawful presence to the very reentry bars described above.

For F.L.H.C., because she had been lawfully admitted as a tourist, adjustment of status was the safer and more direct option, even with the overstay on her record.

Key Legal Principles From This Case

A few principles from F.L.H.C.’s case are worth remembering if you are in a similar situation.

• Being the immediate relative spouse of a U.S. citizen carries real legal advantages that other family and employment categories do not have, including a broad exemption from many of the technical bars to adjustment of status.

• A visa overstay, by itself, is generally not disqualifying for an immediate relative if the person was lawfully admitted in the first place.

• How you entered the United States matters just as much as how long you have been here. Inspection and admission, even on something as simple as a tourist visa, can be the difference between a straightforward adjustment of status case and a much more complicated one.

• Preparation for the USCIS interview is not a formality. Officers ask detailed questions to confirm a marriage is genuine, and being ready for those questions is part of what separates an approval from a request for additional evidence or a denial.

Frequently Asked Questions About Adjustment of Status After a Visa Overstay

Can I get a green card through marriage if I overstayed my visa? 

Often, yes, if you are the spouse of a U.S. citizen and you were lawfully admitted or paroled into the United States when you first entered. Immediate relatives of U.S. citizens are exempt from several of the bars that apply to other applicants, including the bar related to overstaying a visa. This exemption does not automatically apply to every immigration category, so it is worth having your specific situation reviewed.

What is the difference between adjustment of status and consular processing? 

Adjustment of status allows an eligible applicant to complete the green card process while remaining in the United States, filing Form I-485 and attending an interview at a USCIS office. Consular processing requires the applicant to attend an interview at a U.S. embassy or consulate outside the country. For someone who has accrued unlawful presence, leaving the country for consular processing can trigger a three or ten year reentry bar, which is one reason adjustment of status is often the preferred route when it is available.

Does everyone who overstays a visa face the same reentry bars? 

No. The unlawful presence bars under INA Section 212(a)(9)(B) are triggered specifically by departing the United States after accruing more than 180 days, or more than one year, of unlawful presence. Someone who stays in the country and adjusts status without leaving does not trigger these particular bars, though other issues can still affect eligibility depending on the case.

Does entering as a tourist and later overstaying disqualify someone from adjusting status? 

Not automatically. What matters most is whether the person was inspected and admitted at the time of entry. A tourist visa entry generally satisfies that requirement. What tends to disqualify someone is entering without inspection in the first place, for example crossing the border without being seen by an immigration officer, which is a different legal problem than overstaying a valid entry.

What happens at the adjustment of status interview?

A USCIS officer reviews the application and supporting evidence and asks questions to confirm the marriage is genuine and that no grounds of inadmissibility apply. Couples are often asked about their relationship history, living arrangements, and shared life together. Being thoroughly prepared for these questions, and making sure the paperwork anticipates likely areas of concern, is an important part of building a strong case.

Do I need a lawyer to file for adjustment of status?

USCIS does not require applicants to be represented by an attorney, but adjustment of status cases involving a prior overstay, a complicated immigration history, or any potential grounds of inadmissibility benefit significantly from experienced legal guidance. A single overlooked detail in the application or a poorly prepared interview can turn a straightforward case into a denial or a lengthy delay.

Marriage-Based Immigration Services in Las Vegas

The Law Office of Alexander R. Vail helps spouses of U.S. citizens throughout the Las Vegas area and across Nevada pursue lawful permanent residence, including cases involving prior visa overstays, complex immigration histories, and adjustment of status eligibility questions. Learn more about our family-based immigration services, or contact us at (725) 221-5998 for a free consultation. We offer services in English, Spanish, and Hindi.

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.