I am married to a US citizen. Can I apply for a green card even though I overstayed my visa?

QUESTION: I came to the U.S. on an H-1b visa. I overstayed the time given to me on the I-94 Entry Document. I am now married to a U.S. citizen. Will my overstaying my I-94 keep me from being able to get a green card in the U.S.?

Ari Sauer’s Answer: A foreign national who is married to a U.S. citizen can file for a green card in the U.S. as long as in their last entry into the U.S. they presented themselves for inspection at a port of entry and were legally inspected and admitted or paroled into the U.S.

This section of the law forgives the fact that the foreign national has not maintained their legal status in the U.S. and forgives any unauthorized employment by the foreign national.

This means that even though you fell out of status, you are eligible to apply for a green card because you were legally admitted as an H-1B nonimmigrant and you are filing for the green card based on the fact that you are married to a U.S. citizen.

However, this section of the law does not forgive other grounds of inadmissibility, such as criminal convictions, misrepresentation, or being subject to the unlawful presence bar. So the foreign national must otherwise be eligible for admission as a permanent resident.

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