Navigating the complex U.S. immigration system can be daunting, especially when getting a green card through a relative while dealing with an overstayed visa. An overstayed visa is an issue that occurs when an individual stays in a country longer than they are allowed to under their current visa.
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LaToya McBean Pompy is a New York immigration lawyer who immigrated to the United States herself. Her experience sparked an interest in helping many families be together in the U.S. by founding McBean Law. If you need help with your or a loved one’s visa, contact us here or call us today at (888)-462-4006 to schedule a private consultation with LaToya and her team of immigration attorneys who are here to help you.
Getting a Green Card Through a Relative as a Solution to an Overstayed Visa
When it comes to the complex topic of getting a green card while in the U.S. on an overstayed visa, we have already discussed marriage to a U.S. citizen and acquiring a green card through a U.S. citizen child as viable, albeit complicated options. We at McBean Law will aim to explain 7 other common ways of getting a green card through a relative while dealing with an overstayed visa.
1. Getting a Green Card Through a U.S. Citizen Parent
This option for getting a green card can get a bit complicated as it all depends on the age and marriage status of the child applicant.
If the child applicant is under 21 years old, unmarried, and a legitimate immediate relative of the U.S. citizen parent, they are eligible for adjustment of status. This means that they are allowed to obtain a green card in the U.S. while still physically remaining on U.S. soil, as opposed to going back to their country of origin and traveling to the nearest U.S. embassy for interviews.
On the other hand, if the child is 21 or over, they are legally considered an adult and have unlawful presence on their record due to staying on U.S. soil under an overstayed visa. As such, they are not eligible for adjustment of status and will need to go back to their country of origin to go through the immigrant visa application process through the nearest U.S. embassy. If they want to return to the U.S. to have their green card sent to them, they will need an I-601A waiver for unlawful presence prior to leaving the United States in the first place.
It is best to consult with an experienced immigration lawyer in order to learn the policies and find out which would work best for your particular case. Our team of New York immigration lawyers at McBean Law can assist with your case.
2. Getting a Green Card Through a Green Card Holder Parent
One big difference between this option and the previous option with a U.S. citizen parent, is that the child applicant does not need to be under 21 in order to apply for a green card on this basis.
However, the child applicant, regardless of their age, cannot be married if they want to pursue this green card option. A green card holder parent cannot petition for their child if that child is married, as they are not eligible to petition for adult married children.
Furthermore, the child applicant, regardless of their age, will not be granted adjustment of status, and will instead have to go back to their country of origin and go through the immigrant visa application process through the nearest U.S. embassy. If they want to return to the U.S. to have their green card sent to them, they will need an I-601A waiver for unlawful presence prior to leaving the United States in the first place.
It is best to consult with an experienced immigration lawyer in order to learn the policies and find out which would work best for your particular case. Our team of New York immigration lawyers at McBean Law can assist with your case.
3. Getting a Green Card Through Another U.S. Citizen Relative
Although this might seem like an easy option, it is much more complicated than it seems.
The U.S. citizen relative, for example a grandparent or an aunt or uncle, can only petition for their applicant relative if they have legal custody over them. This custody must be bona fide, meaning that it cannot have been obtained purely for immigration purposes.
In addition to this, the child applicant’s age at the time of the adoption cannot exceed 16.
4. Getting a Green Card Through a Non-Immigrant Visa Holder Relative
You can get a green card through a relative who has a non-immigrant visa, such as the H-1B Specialty Occupations visa, which would allow this relative to get a green card through their employer.
5. Getting a Green Card After Having a K-1 Visa
The K-1 visa is a fiancé(e) non-immigrant visa that permits the foreign-citizen fiancé(e) to travel to the U.S. and marry their U.S. citizen sponsor within 90 days of arrival on U.S. soil, after which they would apply for adjustment of status to a permanent resident of the United States.
If the foreign citizen fiancé(e) does not end up marrying their U.S. citizen partner, they cannot apply for adjustment of status. However, it is still possible to get a green card through the consular process in the nearest U.S. embassy in their country of origin.
Like we discussed in the previous sections where adjustment of status is not possible, this applicant will also need a I-601A waiver in order to re-enter the U.S., and this must be obtained prior to leaving the U.S. in the first place.
It is best to consult with an experienced immigration lawyer in order to learn the policies and find out which would work best for your particular case. Our team of New York immigration lawyers at McBean Law can assist with your case.
6. Getting a Green Card Through a U.S. Citizen Sibling
This option is also quite complex but not impossible.
If your sibling is a U.S. citizen petitioning for you during the green card application process, and you are living in the U.S. on an overstayed visa, you will need to go back to your country of origin and finish this process through the nearest U.S. embassy.
Again, you will need a I-601A waiver in order to re-enter the U.S., and this must be obtained prior to leaving the U.S. in the first place.
7. Getting a Green Card Through the Waiver Process
If you come to the United States under a conditional resident, immigrant visa, you will receive a temporary 2-year green card and live in the U.S. under “conditional permanent residency”.
A common issue we see in this case is with applicants who applied on the basis of marrying a U.S. citizen, but subsequently faced significant hardships such as a divorce. These issues can be solved through Form I-751, or the “Petition to Remove Conditions on Residence”, which must be filed 90 days prior to the conditional green card’s expiration date at the latest.
It is best to consult with an experienced immigration lawyer in order to learn the policies and find out which would work best for your particular case. Our team of New York immigration lawyers at McBean Law can assist with your case.
Planning Your Roadmap to Success
Despite nuances and snags, thousands obtain green cards through a U.S. citizen relative annually and find stability. With proper legal counsel, persistent preparation, and meticulous attention to detail, your success can become reality too. A fruitful life with your family awaits at the end. Partner with professionals like McBean Law to chart your visa journey’s triumph.
If you are interested in more topics like this, please consider subscribing to our newsletter to get weekly updates on immigration news, relevant topics, and more! You can also find us on YouTube where we do weekly Q&A sessions.
LaToya McBean Pompy is a New York immigration lawyer who immigrated to the United States herself. Her experience sparked an interest in helping many families be together in the U.S. by founding McBean Law. If you need help with your or a loved one’s visa, contact us here or call us today at (888)-462-4006 to schedule a private consultation with LaToya and her team of immigration attorneys who are here to help you.
