One of the questions I get asked most frequently is whether or not a foreign national can still obtain a Marriage Green Card if said foreign national has overstayed his or her Visa. I refer to these foreign nationals who find themselves in this position as a Visa Overstay. A Visa Overstay is defined as a foreign national who did not leave the United States when he or she promised to.
Many people, including many United States citizens, believe that it is not possible for a foreign national to obtain a Marriage Green Card as a Visa Overstay. However, the fact remains that even a Visa Overstay can obtain a Marriage Green Card. In fact, it really makes no difference if the foreign national is or is not a Visa Overstay.
This is because it is the rights of the United States citizen that is being enforced. Essentially, marriage is a fundamental, constitutional right. In order for the United States government to infringe upon that right, there has to be what is known as a compelling government interest to do so. Simply being a Visa Overstay is not a sin of sufficient magnitude to rise to the level of being a compelling government interest.
On a related note, if the foreign national entered the country without inspection, that is to say entered the country illegally, it will be very, very difficult to obtain a Marriage Green Card.
In order for a Visa Overstay to obtain a Marriage Green Card, it will have to be proven that the marriage was entered into in good faith, based upon love, support and affection, and not a sham marriage designed to circumvent the United States’ immigration laws. This procedure is, in effect, no different from the procedure for obtaining a Marriage Green Card even if the foreign national was not a Visa Overstay.