Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
I overstayed my visa. Can my company sponsor me for a green card?
By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser immigration law firm.
QUESTION: I came to the US 15 years ago on a visitor’s visa. Can my company sponsor me for a green card?
THE IMMIGRATION ANSWER MAN: As a general rule, in order to be eligible to apply for Adjustment of Status (an application for a green card in the US), an applicant must show that they have maintained valid immigration status at least until the time they file the application for adjustment of status. Therefore someone who enters on a visa, but overstays past the time listed on their I-94, is not eligible to apply for adjustment of status unless they fall within one of the few exceptions to this rule. The more common exceptions to this rule are a) adjustment for an Immediate Relative, b) adjustment under the 245(i) amnesty, and c) adjustment under 245(k). There are other exceptions to this rule, however these three are the most common.
Immediate Relative Exception: An Immediate Relative (IR) is the 1) spouse of a U.S. citizen or the 2) unmarried child of a U.S. citizen who is under the age of 21. If the foreign national’s most recent entry into the US was with a visa, was admitted on the Visa Waiver Program, or was paroled into the U.S., then they are able to apply for Adjustment of Status based upon the fact that they are applying as an Immediate Relative.
245(i): Another exception is where the foreign national can show that 1) an immigrant petition or labor certification was filed on their behalf before January 14, 1998, or 2) that an immigration petition or labor certification was filed on their behalf before April 30, 2001 and they were in the U.S. on December 21, 2000. When filing under the 245(i) “amnesty” the foreign national must pay an additional $1,000 penalty filing fee.
245(k): Under the 245(k) exception, a foreign national who is filing a green card application based upon an immigrant petition filed by their employer may still be eligible to apply despite falling out of status. To be eligible under 245(k) the foreign national must not have been out of status, worked without authorization, or done anything else to violate their status for a total of more than 180 days between the time of their last entry into the U.S and the time they file the green card application.
If you are not eligible to apply for adjustment of status in the U.S., you might still be eligible to apply for an immigrant visa at the U.S. Embassy or Consulate in your home country. However, you should consult with an immigration attorney before doing so to make sure that you are not barred from receiving a visa under any of the categories of inadmissibility.
This is a brief overview of these complex rules. As such, I recommend that you consult with a qualified immigration attorney before filing an application for adjustment of status under one of these rules.
You can call 901-507-4270 to schedule an appointment to talk to me about your case.
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Submit questions to The Immigration Answer Man by emailing your question to firstname.lastname@example.org or by posting your question on Facebook, Twitter or LinkedIn. Questions submitted by email will be posted without the personal information unless specifically requested. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation.
Last updated March 11, 2013.
* This is an advertisement. Ari Sauer is a Memphis immigration lawyer with the Siskind Susser law firm. www.visalaw.com/ari. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.