Ep. 4 Visa waiver expired and now married to a US citizen. Can I still get my green card?

Raw Transcript:

Introduction: You ask we answer your immigration questions. Simple. And now your host immigration lawyer Jacob Sapochnick.

Jacob: Today’s question is coming from Roberta from Kansas City. Roberta’s question is the following: I am an Italian national. I came here about two years ago in the visa waiver program. Since then my visa waiver expired and just recently I married a US citizen. Can I get my green card inside the US?

Well Roberta, this is a very complicated issue because the visa waiver is a privilege, it’s a [inaudible 00:00:40] privilege that Europeans are granted to come to visit to US. Once you overstay the visa waiver you’re really losing most of your rights to be able to file from any of the US residency applications. Now, marrying a US citizen is somewhat an exception.

To answer your question is you can file from the Adjustment of Status but a recent case law making it very difficult for this case to be approved. In fact the situation is so complicated that different immigration offices in different states in different cities treat this problem differently. For example in my office, I’m here in San Diego, California, we had a problem in this office here where they were denying those cases about a year ago. Now the situation is that they will approve them as long as you have a good reason to explain the overstay. I know that in other states like New York and in Florida they also do it in a discretion basis.

The point is that if you file the Adjustment of Status you have to realize that you may get denied and if you get denied you may be removed from the US.

Closing: Thank you for listening to the Ask My Immigration Lawyer Podcast, the show that’s dedicated to answering your immigration questions. Simple as that. See you next week for another round of questions and much needed answers.