One of the most common questions we hear is this: “I entered the United States with a visa, then overstayed. Can I apply for residency through a family petition without leaving the country?” Many people assume that because they entered legally, they automatically qualify to adjust status in the U.S. Unfortunately, that is a myth.
The law requires that a person maintain continuous lawful status until their case is fully decided in order to adjust status inside the United States. That means you must remain in legal status from the time you enter with your visa until the day your green card application is approved. For most people who entered legally but then overstayed, this requirement is not met. As a result, many applicants must leave the country and process their residency through a U.S. consulate abroad.
The Exceptions: Who Can Adjust Status in the U.S.?
There are some important exceptions to the rule. If you fall under one of these categories, you may be able to adjust status inside the United States even if you overstayed:
- Parents of U.S. citizens who are 21 or older. If your U.S. citizen child is over 21, you can apply for residency without leaving.
- Minor children of U.S. citizens. If you are a U.S. citizen and your child under 21 entered legally, they can apply for residency here.
- Spouses of U.S. citizens. If you entered legally, you can apply for residency inside the U.S. through your U.S. citizen spouse.
- 245(i) protection. If you or your parents were the beneficiaries of certain petitions filed before April 30, 2001, you may qualify under this law to adjust status inside the U.S. even if you overstayed.
Outside of these categories, most people must go through consular processing. That means leaving the U.S. for an interview at a U.S. consulate abroad, often in your home country.
Who Cannot Adjust Status Inside the U.S.?
Even if you entered with a visa, you generally cannot adjust status in the U.S. if:
- You are the spouse of a permanent resident (unless you qualify under 245(i)).
- You are an adult child of a U.S. citizen, whether married or single (unless you qualify under 245(i)).
- You are the adult child of a lawful permanent resident (unless you qualify under 245(i)).
- You are the sibling of a U.S. citizen (unless you qualify under 245(i)).
In these cases, you must attend your immigrant visa interview at a consulate abroad and often apply for a waiver of unlawful presence before leaving.
The Good News About Waivers
The provisional waiver (I-601A) is taking about two years to be processed right now. This is a significant improvement compared to the nearly five-year wait during the COVID-19 pandemic. For many applicants, this means they can return to the U.S. within just a couple of weeks after their consular interview—sometimes even less if processing in Mexico.
Why Some People Get Stuck Abroad
Many immigrants are afraid to leave for their consular interview because they’ve heard stories of people who never came back and were barred for ten years. While those stories are real, what is often left out are the reasons behind them. Many times, those individuals:
- Had undisclosed immigration violations.
- Tried to hide prior entries and exits.
- Worked with notaries or unqualified representatives who failed to properly analyze their cases.
- Had criminal issues, gang-related concerns, or medical problems that made them ineligible.
A well-prepared and clean case, guided by an experienced immigration attorney, is far less likely to face these issues.
Why Legal Guidance Is Essential
Every case must be carefully analyzed for:
- Immigration violations that may trigger additional bars.
- Criminal records or arrests that could impact eligibility.
- Gang-related concerns, including tattoos that may be misinterpreted by consular officers.
- Medical conditions such as tuberculosis or drug and alcohol dependency.
An experienced attorney can identify these risks and prepare you before you leave the country. In many cases, attorneys can predict with high accuracy whether someone will be approved, denied, or face administrative delays.
Final Thoughts
If you entered with a visa and stayed, don’t assume you automatically qualify to adjust status in the U.S. The law is stricter than many people think, but there are still paths available depending on your family situation and immigration history.
At Landerholm Immigration, A.P.C., our mission is to help immigrants like you avoid mistakes that could lead to deportation or long separations from your family. If you think you may qualify—or if you’re unsure which path is safest for you—contact us today. A consultation with a qualified immigration attorney can mean the difference between approval and a ten-year bar.
Call our office to schedule your consultation and let us help you find the best path toward residency.