Can a visa overstay apply for adjustment of status through a U.S citizen spouse?

UPDATED: May 23, 2012

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Can a visa overstay apply for adjustment of status through a U.S citizen spouse?

I had heard countless times that a visa overstay can petition for an adjustment of staus through their U.S citizen spouse. My fiance and I were looking into this and our lawyer adviced us not to file. This case is a bit different in a way that I (the overstay) not only overstayed the I-94, but left and returned to the U.S. while still residing in the country. This happened while I was under age, and somehow did not encounter any problems at the port of entry. I was told that the simple action of me leaving the country and returning has barred be from adjustment of status. Is that true?

Asked on May 23, 2012 under Immigration Law, Arizona


SB, Member, California / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you overstayed and left while you were under the age of 21, it does not matter because you had not accrued any unlawful presence time and, thus, are not subject to the bar to reentry.  If you then reentered the US lawfully (with a visa) and have since again overstayed, as long as you are legally married to a US citizen and the marriage is bona fide, then you are eligible to apply for adjustment of status.  If you would like to discuss this further, you can contact me directly.

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