One of the most common mistakes I see all the time in my practice, is people thinking that they can cure their illegal overstaying in the US by getting someone to sponsor them for employment. It happens all the time. Someone gets a sponsorship, and gets approved by the USCIS and then they come to see me to help them process their adjustments to permanent residence or green card status. Unfortunately, and I can’t stress this enough, there is very little that can be done at this point. The law is very clear on this matter. If you lost your status, meaning you have overstayed already, you cannot adjust your status to a new visa status because there is nothing you can adjust from. You have lost it already.
When USCIS was processing your sponsor’s application, the USCIS may have not noticed that you are unlawfully staying in the US, and your employer may not know it either (unless you tell them). And after spending money on the process, and a lot of time has been consumed, the reality hits you: the visa is there ready for you, but you are ineligible to get it because you have overstayed.
That’s when people get confused, and angry, and argue about it. “But I got a sponsorship. I got the letter from the USCIS…”, “I have been approved, what do you mean I cannot get it?”
I understand my clients’ frustration. It’s not easy to understand why you cannot get something that has been approved. But the sad truth is that, after you get approved, you still need to “adjust” status, meaning change your current status to the new one, that of a permanent resident. And USCIS requires that only a person with legal status in the US can adjust to another status. If you have lost is by overstaying, you have nothing to adjust from.
That’s why I can’t stress this enough. DO NOT LOSE YOUR STATUS!
My advice is always the same. Prevention. But how?
1. Apply for an extension. Whatever status you have, ask for an extension. Tourist visas are for 6 months only but you can ask for another 6 months. It is possible you could be denied and if you are, you must exit. At least you tried and while you are waiting for the decision, you are not out of status. If this is not possible you still have another option.
2. Change your type of visa. Each visa has certain conditions, for example a tourist visa only allows you to see the sights, and not work or study. But from a tourist visa, you could find a school and convert to a student visa.
Again, I stress, do not lose your legal status! There is no way around it.
There is only one legal exception to this: marriage. If your girlfriend or boyfriend is a US citizen and you get married, then you can adjust your status. However, if your girlfriend or boyfriend is not a citizen but a green card holder you would still have to go back to your country to adjust your status but you cannot enter the US again because the ban (for overstaying) will then apply.
If you want to know more, please contact our Law Firm at firstname.lastname@example.org to set up an appointment. We also offer phone consultations.
We are here to help you.
Best wishes, Claudette Delacerna.