Can I be deported by overstaying my visa, even when I am applying for I-485 Adjustment of Status / Green Card?

This is probably the most common question whenever anyone is applying for Adjustment of Status, and the person entered with a Tourist Visa, ESTA, the Student Visa is about to expire because the school has ended, the J Visa period of stay is about to end, etc.

The questions:

  • What are the risks of deportation by overstaying a visa when applying for a green card?
  • Can ICE detain me after my visa expires and my green card is still pending?
  • Does the I485 freeze my status and keeps me safe?

In short, if you meet basic eligibility requirements, this post will ease some concern:

  1. For Marriage: there must be a marriage certificate, the marriage must be to a US Citizen, and the Immigrant must have entered the country legally.
  2. For Parent/Child: the Birth Certificate must show the relationship and the Immigrant must have entered the country legally. Additionally, if the Immigrant is the US Citizen’s Parent, the US Citizen must be 21 years old. If the Immigrant is a child under 21 of a US Citizen, the child must be unmarried.

If eligibility is met, based on the relationship to the US Citizen, then the I-485 filing can keep the immigrant safe. Jurisdiction would fall to USCIS to process the filing. Simply overstaying a visa would not be a concern for ICE, and ICE would not deport the immigrant.

Now, if you received the attention of ICE, it is usually due to criminal activity, and this criminal activity can get you detained. Just like any crime, punishment follows. However, the type of crime committed does matter.

Why is the eligibility relationship so strict?

Not all relationships permit I-485 Adjustment of Status. The following relationships are not immediate filings and can even have processing times of over 20 years:

  • Spouses of Lawful Permanent Residents
  • Children under or over the age of 21 of Lawful Permanent Residents
  • Children over the age of 21 of US Citizens
  • Parents of Lawful Permanent Residents (zero eligibility since child MUST be a US Citizen)
  • Siblings of US Citizens (zero eligibility for siblings of Lawful Permanent Residents)

 

Related Blog Posts:

Joint Bona Fide Documents: How to Start meeting the USCIS I-130 Evidence Requirement for a Marriage

USCIS Marriage-Based Adjustment of Status Interview in 2021: Tips and Tricks

Tourist Visa and ESTA/VWP: Consular Processing Versus Adjustment of Status

Overstaying a Visa Waiver and AOS

Marrying An Immigrant: Overstayed Visa and Working Without Authorization

 

 

 

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