Question: A foreign national came to the U.S. on a visitor visa and overstayed his visa. He is now married to a woman who recently became a Permanent Resident. Can he now get Permanent Residence based upon his marriage?

Immigration Answer Man: No. A foreign national who is in the U.S. out of status is not eligible to adjust his status to become a Permanent Resident (green card holder) based upon his marriage to a Permanent Resident. A Permanent Resident can file an immigrant visa petition for her spouse under the second preference visa category (F2A). The DOS Visa Bulletin is currently showing a wait for a visa to become available under that category of about four years for foreign nationals from most countries and longer for foreign nationals from Mexico.

Even once the visa petition is approved and a visa becomes available for such a foreign national, since they are out of status, they would not be able to file for Adjustment of Status in the U.S. (unless they fall within one of a few exceptions). They would only be eligible to apply for an immigrant visa at the U.S. consular post in their home country. However, if they have been unlawfully present in the U.S. for more than 180 days, they will trigger a bar of inadmissibility upon exiting the U.S. and would require USCIS to approve a waiver of that inadmissibility based upon extreme hardship to their Permanent Resident spouse. Unfortunately the Unlawful Presence bar and waiver is too big a topic to discuss in this posting.

Alternatively, since they were legally admitted to the U.S. when they came on their visitor visa, once the Permanent Resident spouse naturalizes, they should be eligible to apply for Adjustment of Status in the U.S. as the Immediate Relative spouse of a U.S. citizen. (See 9/23/09 posting for more about this)

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