Will my wife's past visa overstays hurt her chances of getting a green card?

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Question:

I'm a U.S. citizen, and I recently married a Thai citizen in Thailand after knowing her for six months. Three years ago, while she was a student in the United States, she let her student status expire and overstayed her visa. I don't know exactly how long she was living in the U.S. illegally, but I think it was several months. When I file the petition for spousal immigration, will it be denied?

Answer:

You've shown some signs of waking up from that misty honeymoon state by asking this question -- now it's time to sit bolt upright, grab a strong Thai coffee, and do some fact checking. Just how long did your wife overstay her U.S. visa, and when? Did the immigration authorities notice her overstay?

Here's the deal: Starting on April 1, 1997, anyone who stayed continuously in the United States without a proper visa for more than 180 days but less than 365 days, and then left, is barred from returning to the U.S. for three years. Worse yet, someone who stayed illegally for a year or more, and then left, cannot come back for ten years.

But don't give up too soon. First, if your wife was under age 18 for any of the time she was illegal, that time does not count. Nor does any illegal time before April 1, 1997, or for less than 180 continuous days (even after April 1997). Nor does any time during which your wife was permitted, as a student, to stay for the duration of her status (marked "D/S" on the Form I-94 Arrival/Departure Record in place of an expiration date) -- so long as the immigration authorities or an immigration judge hadn't actually determined that her status was over.

Lucky for you, it sounds like all of this happened around three years ago -- so if your wife overstayed her visa for less than one year, she has almost served out the three-year "penalty" time already, by staying overseas.

Finally, if your wife is in fact barred from reentering the United States, you can ask for a waiver of this bar, arguing that it will cause you -- the U.S. citizen -- extreme hardship. (The law doesn't care about the hardship that your wife would suffer.) If you have to apply for a waiver, get an experienced immigration lawyer to help -- what may feel like extreme hardship to you may not even raise an eyebrow on a world-weary immigration official.

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