Marrying An Immigrant: Overstayed Visa and Working Without Authorization

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This post will only speak to the immigrant spouse that is within the United States. In a general sense, when an immigrant overstays a visa, he or she accrues unlawful presence within the United States that may lead to a “3 year bar” or “10 year bar” from being granted entrance back into the United States.

However, if an immigrant, who lawfully entered the United States, marries a U.S. Citizen (becoming an immediate relative), the immigrant qualifies for “Adjustment of Status.” Once again, it is generally required that an immigrant receives a waiver of a possible admissibility bar from unlawful presence. However, an “immediate relative,” such as a spouse, is exempt from unlawful presence restrictions and may Adjust Status through USCIS within the United States.

Similar to unlawful presence, employment without prior authorization can have some significant consequences, such as cancelation of a visa and even damaging an immigration process. However, under 8 CFR 245.1(b)(4), an immediate relative who worked without employment authorization prior to filing the Adjustment of Status will be exempt from the restrictions imposed by the unauthorized employment.

However, this exemption is only for “prior to filing the Adjustment of Status,” an immigrant would be wise to stop working, file an employment authorization form, wait the short period of time for processing, and only upon receiving the Employment Authorization Document (“EAD”), resume working.

Marriage is a beautiful part of life, and the stress from complications should not worry the couple. As such, spouses (U.S. Citizen and Foreign National) have some exemptions that are unique in U.S. Immigration Law.

If you have any questions or concerns, please feel free to call Fickey Martinez Law Firm at (910) 526-0066 or email us at attorney@fickeymartinezlaw.com.

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