Sponsoring a Relative Who Has Overstayed a Visa
Discovering that your family member overstayed their visa can be frightening and confusing. You want to help them obtain legal status, but you’re worried that their overstaying has ruined their chances. At Robert M. Bell, our family immigration lawyer helps families throughout Florida navigate these complex situations every day. The good news is that sponsoring a relative who overstayed may still be possible, but the path forward depends on several critical factors.
Understanding Visa Overstays
A visa overstay occurs when someone remains in the United States beyond the date authorized by their visa or admission stamp. Even overstaying by a single day can result in immigration violations with serious consequences, including bars to future immigration benefits and potential removal proceedings. However, not all overstays result in the same outcomes, and not all paths to legal status are closed simply because someone overstayed.
The Three-Year and Ten-Year Bars
The most significant consequence of overstaying involves what immigration law calls “unlawful presence bars.” If your relative overstayed by more than 180 days but less than one year, they trigger a three-year bar to returning to the United States if they leave the country. If they overstayed for one year or more, they face a ten-year bar.
These bars only take effect if the person departs the United States. Someone who remains in the U.S. after an overstay doesn’t trigger these bars—but they do face other consequences, including potential removal and difficulty obtaining future immigration benefits.
Immediate Relatives Have Special Options
If you are a U.S. citizen (not just a green card holder) and your relative is your spouse, parent, or unmarried child under 21, they are considered an “immediate relative” under immigration law. Immediate relatives can often adjust status to obtain a green card without leaving the United States, even if they overstayed their visa.
This means that despite the overstay, your immediate relative may be able to apply for a green card from within the United States through a process called adjustment of status. They would need to enter legally (with inspection and admission) for this to work, but an overstay alone doesn’t disqualify them from this pathway.
Other Family Preference Categories Face Challenges
If your relative doesn’t qualify as an immediate relative, the situation becomes more complicated. These “preference category” relatives typically cannot adjust status if they overstayed their visa. They will need to leave the United States for consular processing, which would trigger the three-year or ten-year bar if they accrued sufficient unlawful presence.
Waivers May Provide Solutions
Even when unlawful presence bars apply, all hope is not lost. The I-601A provisional waiver allows specific individuals to apply for a waiver of the unlawful presence bars before leaving the United States. If approved, they can depart for their consular interview with confidence that they’ll be able to return.
To qualify for this waiver, your relative must demonstrate that their U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the waiver were denied. These cases require careful preparation and compelling evidence of hardship.
Consult Our Experienced Visa Attorneys in Florida
If your relative is currently in the United States after an overstay, time is critical. The longer they remain unlawfully present, the more severe the consequences become. Additionally, they risk being placed in removal proceedings, which creates additional complications.
Don’t let a visa overstay prevent you from reuniting with your family. Contact an immigration lawyer at Robert M. Bell at (954) 241-4209 today. Our bilingual team will review your relative’s situation and explain your options for sponsoring them, even if they overstayed their visa.