If You Overstayed Your Visa, Getting Married to a U.S. Citizen Does Not Automatically Fix It

Arzoo Connor • June 9, 2026

What the Path to a Green Card Actually Looks Like When There Is an Overstay Involved, and Why a New 2026 USCIS Policy Makes This More Urgent Than Ever.

A client came in recently. She had been here for years past her visa expiration, was married to a U.S. citizen, had children here, had built a life here. She assumed the marriage meant the path forward was straightforward.


A path existed. It just was not as clean as she thought.


This comes up constantly in my practice. Spouses of U.S. citizens are immediate relatives under immigration law, which means they are not subject to the annual visa number caps that other family categories are stuck waiting on. That matters. But the marriage does not erase what happened before it, and depending on how long someone has been out of status, it does not determine how the case gets resolved on its own.


The Clock Nobody Told You About

When someone enters on a visa, their I-94 sets the date their authorized stay ends. The day after that date, if nothing has been filed and they have not left, they start accruing what immigration law calls unlawful presence.


Once that number crosses 180 days, leaving the United States triggers a three-year bar on coming back. Once it crosses a year, that bar becomes ten years. These are not discretionary. They are written into the statute. They activate at the border, not in a USCIS office, which means someone can spend years working toward a green card and find out at a consulate abroad that they cannot return for a decade.


I have had clients leave for what they believed was the final step in their process. They did not come back. The bar was already attached before they ever boarded the plane and nobody had told them.


How Someone Entered Changes Everything

Two people can be in nearly identical situations and have completely different options available.


For someone who entered the United States legally on a valid visa and is married to a U.S. citizen, there is a process called adjustment of status that allows them to apply for a green card without leaving the country. The application is filed with USCIS, processed here, and if approved, they become a lawful permanent resident without ever triggering the departure bars. Once an I-485 adjustment application is filed, it also stops the accrual of unlawful presence going forward. The period while it is pending counts as authorized stay.


One thing people get wrong about this: a pending I-485 does not restore the visa status that lapsed. Authorized stay and lawful nonimmigrant status are two different things under immigration law. The distinction matters for certain parts of the case, which is why an attorney needs to look at the full picture before anything is filed.


For someone who entered without inspection, meaning they crossed without going through a legal port of entry, the standard adjustment of status pathway is generally not available regardless of who they married. The process for them typically involves consular processing, which means leaving the country for an interview at a U.S. consulate abroad, which is exactly where the unlawful presence bars kick in.


There are waivers available for those bars. A provisional unlawful presence waiver, filed before departure, can address the three-year and ten-year bars for people who have a qualifying U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the applicant were barred. These waivers are not guaranteed and the hardship standard requires real documentation, medical records, financial dependence, the impact on children, specific evidence tied to the specific family. Some people qualify. Some do not.


The 2026 USCIS Memo and Why It Matters Right Now

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, titled Adjustment of Status is a Matter of Discretion and Administrative Grace. Anyone with an overstay in their history who is planning to file, or who has been putting it off, needs to understand what this memo does.


The memo tells USCIS officers that adjustment of status is not something an applicant is entitled to just because they meet the technical requirements. It frames the process as extraordinary relief and directs officers to exercise discretion in evaluating the full history of an applicant, not just whether the box-checking requirements are met.


Overstays are explicitly listed as negative factors officers must weigh. The memo notes that applicants who remained in the United States instead of departing and pursuing a visa through the normal consular process may face adverse findings in that discretionary review.


For years, spouses and immediate relatives of U.S. citizens were in the most favorable position with USCIS when it came to cases with some overstay history. The assumption was that the family relationship would carry the case. This memo does not eliminate that favorable treatment, but it makes clear that officers should not automatically excuse status violations just because of who someone is married to. That assumption is no longer safe.


DHS has said publicly that the memo is intended to remind officers of existing policy rather than create new restrictions. But I am already seeing more intensive questioning at adjustment interviews, more requests for evidence about entry history, and more scrutiny on cases that would have moved through without friction before. The memo changed the environment even if it did not change the statute.


For someone filing now, this means the case needs to be prepared to directly address the overstay. Strong documentation of positive factors, the length and legitimacy of the marriage, family ties, employment history, tax returns, community roots, any evidence of good moral character. The overstay is not disqualifying in most adjustment cases. How it is presented and what surrounds it in the record matters more than it did a year ago.


The Situations I See Most Often


Entered legally, married a U.S. citizen, has been out of status for some period of time


This is the most common situation and generally the one with the most options. Adjustment of status is typically available if the legal entry is documented. The length of the overstay matters less here because the person is not leaving to complete the process. The new memo means the case needs to be put together carefully, but a well-prepared application with strong supporting documentation is still approvable. This is not the time to file a bare-bones I-485 and hope for the best.


Entered without inspection, married a U.S. citizen


Without a legal entry, the standard adjustment pathway is generally closed. Consular processing means leaving, which means the unlawful presence bars need to be dealt with first through the provisional waiver process. These cases require demonstrating extreme hardship to a qualifying family member. The bar is genuinely high, but these cases do get approved when the hardship is properly documented and the argument is built correctly.


Came in on a student or work visa, let status lapse, has been here for years


Student visa holders are a category where people frequently do not know their status has ended. F-1 students admitted for duration of status rather than a specific date sometimes miss when their authorized period expired, especially if they stopped attending school or dropped below full-time enrollment. A status violation can start the unlawful presence clock without any formal notice. A future application denial, not an official warning, can be what formally triggers it in some situations. Work visa holders who had gaps between employers or petitions are in similar territory.


In all of these situations the calculation depends on specific facts. When the visa was issued. When it expired or when the violation occurred. What has happened since. Whether any applications have been filed. These details determine what the actual options are.


What Not to Do

Do not leave the country before talking to an immigration attorney. If the unlawful presence bars have attached, departure triggers them. Once that happens at the border, the options that existed before departure are no longer on the table.


Do not file anything with USCIS without understanding how your overstay history will appear in the application and how it will be evaluated. Under the current discretionary framework, a poorly prepared application carries more risk than it did before.


Do not assume a pending application covers everything. It stops the clock going forward. It does not change what is already in the record.


And do not keep waiting without a reason. The positive factors that USCIS weighs under the new memo, length of residence, family ties, employment, community, are things that can be documented and presented. Every year of continued presence without formal status is a year that could have been part of a properly filed case instead.


The Bottom Line

An overstay does not automatically close the door to a green card. But marriage alone does not open it either. The entry, the length of the overstay, the family situation, and the current policy environment all factor into what the actual path looks like.


The families I can help most are the ones who come in before they do anything, before they travel, before they file, before they make a decision based on what worked for someone else. A consultation is not a commitment. It is just an honest look at where things actually stand.


About the Author

Arzoo R. Connor is a licensed immigration and estate planning attorney and the founding attorney of ARC Legal Services in Fort Worth, Texas. She came to this country as a child and has spent her career representing immigrant families in family-based immigration, adjustment of status, removal defense, naturalization, and estate planning. To schedule a consultation, call 469-200-0158.


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What this ruling does not do This is a preliminary injunction, not a final ruling. The case is still ongoing and the government may appeal. Courts can modify injunctions. The legal landscape can shift again. If you have a pending case and you have an upcoming ICE check-in, court date, or biometrics appointment in the DFW area or anywhere else, please speak with an immigration attorney before you go. This ruling changes your position meaningfully but it does not eliminate all risk in every situation. The difference between a U visa, T visa, and VAWA petition I get asked about the difference between these three constantly, so let me explain them plainly. The U visa is for noncitizens who have been victims of certain serious crimes and who have cooperated or are willing to cooperate with law enforcement investigating or prosecuting that crime. The list of qualifying crimes includes assault, domestic violence, sexual assault, trafficking, kidnapping, and others. 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What to do based on where your case stands If you have a pending U visa, T visa, or VAWA petition and you are in removal proceedings or have an upcoming enforcement encounter, contact an immigration attorney before you do anything. The class certification in this case means you have legal protections, but those protections need to be properly invoked and documented in your specific case. They do not apply automatically without anyone knowing about them. If you were detained or deported while your application was pending, contact an attorney immediately. The court ordered the government to address those situations and there may be a path to return. If you have been thinking about filing but have been afraid to because of what might happen, this ruling does not erase every risk. But these programs exist because you came forward. The court has now said the government cannot use that against you. You should not be making this decision alone. Our office handles U visa, T visa, and VAWA cases. A consultation is $50. Call us. Attorney Arzoo Connor ARC Legal Services | Fort Worth, TX | Hablamos Español 469-200-0158 | www.arclawoffice.com This post is for general informational purposes only and is not legal advice. Immigration law is complex and every case is different. Please consult a qualified attorney about your individual situation.
By Arzoo Connor June 30, 2026
On June 30, 2026, the United States Supreme Court ruled 6-3 to uphold birthright citizenship, striking down President Trump's January 2025 executive order that attempted to end automatic citizenship for children born in the United States to parents who are undocumented or here on temporary visas. For immigrant families across this country, this ruling matters enormously. For the immigration system as a whole, it is one piece of a much larger and still very uncertain picture. This post will walk through exactly what happened, what it means for families and children, what it does not change, and what you should actually do right now depending on your situation. What Is Birthright Citizenship and Why Was It Under Threat? Birthright citizenship is the principle that anyone born on United States soil is automatically a US citizen, regardless of the immigration status of their parents. This right is grounded in the Fourteenth Amendment to the Constitution, ratified in 1868, which states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." For over 150 years this has been settled law. The Supreme Court first affirmed it in 1898 in United States v. Wong Kim Ark, ruling that a child born in San Francisco to Chinese parents was a US citizen by birth. That precedent has held ever since. In January 2025, President Trump signed an executive order on his first day back in office directing federal agencies to no longer recognize birthright citizenship for children born to parents who are in the country unlawfully or on temporary visas. The order was immediately challenged in courts across the country, and lower courts blocked it from taking effect. Today, the Supreme Court put the question to rest. Chief Justice John Roberts wrote the majority opinion. Six justices rejected the executive order. The Fourteenth Amendment means what it has always meant. What Was Actually At Stake: The Real-World Impact for Families This was not an abstract constitutional debate. The stakes were concrete and life-altering for hundreds of thousands of people. Approximately 250,000 babies are born every year in the United States to parents without permanent immigration status. If the executive order had been upheld and allowed to take effect, those children would not have automatically received US citizenship. The implications of that are severe: No US birth certificate recognized for citizenship purposes. The document every American uses to get a passport, enroll in school, apply for a job, or prove their identity would no longer have been sufficient. No Social Security number at birth. Access to government programs, healthcare, and employment would have been significantly complicated from day one of a child's life. Potential statelessness. In some cases, children could have ended up without recognized citizenship in any country — their parents' home country might not grant automatic citizenship either, leaving a child in legal limbo with no nationality at all. Generational consequences. Citizenship at birth affects not just the child but their future ability to sponsor family members, vote, serve, and fully participate in American life. For my clients who are pregnant or planning families, and for the families who have sat across from me terrified about what this ruling might mean for their children, today is genuinely good news. Children born in the United States are citizens. That is protected. What the Ruling Does Not Change This is where I have to be honest about the limits of today's win. The Supreme Court's ruling protects what happens the moment a child is born on US soil. It does not touch anything happening to people who are already here navigating the immigration system. In the same term, this Supreme Court issued three other immigration rulings that went the other way entirely: Temporary Protected Status stripped for Haitians and Syrians. On June 25, 2026 the Court ruled 6-3 in Mullin v. Doe that federal courts cannot review the Department of Homeland Security's decision to end TPS designations. That means DHS has unchecked power to terminate protections for any country, and there is no judicial recourse. Roughly 350,000 Haitians and 6,000 Syrians are immediately affected. Nearly 1.3 million people held TPS across 13 countries before the current administration began ending those designations. All of them are now more vulnerable. People who have lived here legally for decades, raised US citizen children, built businesses, and held jobs in healthcare, construction, and education can now be deported with no avenue left to challenge it in court. Green card holders and suspicion of crime. On June 23, 2026 the Court ruled 6-3 in Blanche v. Lau that border officers do not need clear and convincing evidence that a returning lawful permanent resident committed a crime before treating them as someone applying for admission rather than someone already admitted. Suspicion alone is now enough to begin deportation proceedings against a green card holder at the border. Asylum seekers at the border. Also on June 25, 2026 the Court ruled 6-3 that the government can physically turn back asylum seekers before they reach US soil. If you never cross, you have no right to make an asylum claim at all. Beyond the Supreme Court, USCIS issued a new policy memo earlier this month raising the standard for Adjustment of Status — the process of applying for a green card from inside the United States. Proving you qualify is no longer enough. Officers are now scrutinizing why you filed from inside the country instead of going through a consulate abroad, and the evidence required is significantly more substantial than it was just weeks ago. Immigration courts are simultaneously scheduling what attorneys are calling "mega master" hearings — mass calendar hearings with 100 or more people at a time — pulling forward cases that were set for 2027, 2028, and 2029. People are missing hearings they did not know were rescheduled. A missed hearing can result in a removal order issued in your absence. Four Supreme Court immigration rulings in one term. A new USCIS policy memo. Accelerated court dockets. The youngest amongst us were protected today. Everyone else in the immigration system is navigating a landscape shifting faster than most people realize. What You Should Do Based on Your Situation If you were worried about your child's citizenship status: You can let that specific fear go. Any child born on US soil is a US citizen under the Fourteenth Amendment and today's ruling confirms that protection is intact. If you have a pending green card application or are thinking about filing: Do not file on your own right now. The standards changed this month. What was the right strategy last month may not be the right strategy today. Talk to an immigration attorney who understands how cases are actually being reviewed under the new USCIS memo before you do anything. If you have a pending immigration court case: Log into your EOIR account today and confirm your hearing date. Do not assume it is still what it was when you last checked. Courts are rescheduling cases with little notice, and a missed hearing has serious consequences. If you have a green card and any criminal history: Do not travel internationally without speaking to an attorney first. The legal landscape around what can happen to a lawful permanent resident at the border changed with this month's Supreme Court ruling on immigration parole. If you are outside the US and trying to seek asylum: The path just got significantly harder following the Supreme Court's ruling earlier this month on border metering. Speak with an attorney about your options before making any decisions. If you have Temporary Protected Status from Haiti, Syria, or another country: The Supreme Court ruled that courts cannot review DHS's decision to end TPS designations. That means the legal fight in the courts is largely over. If you have TPS, speak with an attorney now about whether any other pathways exist for your situation — family-based options, asylum, or other forms of relief — before your status expires. Frequently Asked Questions About the Birthright Citizenship Ruling Does the Supreme Court's birthright citizenship ruling affect my green card or immigration case? No. This ruling applies only to citizenship for babies born on US soil. It does not change green card adjudication, asylum proceedings, TPS status, immigration court cases, or enforcement policies. I have Temporary Protected Status. Does today's birthright citizenship ruling help me? No. The birthright citizenship ruling is separate from the TPS ruling issued on June 25, which gave DHS unchecked power to end TPS designations without court review. Those are two distinct rulings. If you have TPS, reach out to an attorney to understand your options. Is birthright citizenship permanently protected now? This ruling reaffirms over 150 years of constitutional precedent under the Fourteenth Amendment. It cannot be changed by executive order. Any future change would require a constitutional amendment, which is an extremely high bar. My child was born in the US and I am undocumented. Is my child still a citizen? Yes. Under the Fourteenth Amendment and today's ruling, your child is a US citizen by birth regardless of your immigration status. Can the president issue another executive order on birthright citizenship? Today's ruling makes clear that birthright citizenship is a constitutional right, not a policy that can be changed by executive action. A new executive order on the same grounds would face the same legal outcome. What does this ruling mean for my own immigration status as a parent? It does not change your status. Your child being a US citizen does not automatically confer any immigration benefit to you as a parent, though it may be a relevant factor in future immigration proceedings. Speak with an attorney about your specific situation.  A Note From Our Office Immigration law is moving faster right now than at almost any point in recent history. We post updates like this because we believe people deserve to understand what is actually happening, not just hear that something happened. If you have questions about how any of this affects your specific situation, reach out to us directly. We are here, and we will give you honest guidance. Attorney Arzoo Connor ARC Legal Services Fort Worth, TX | Hablamos Español 📞 469-200-0158 🌐 www.arclawoffice.com This blog post is for general informational purposes only and does not constitute legal advice. Immigration law is complex and fact-specific. Please consult a qualified immigration attorney regarding your individual situation before taking any action.
By Arzoo Connor June 26, 2026
The government wants to raise the citizenship application fee by 75 percent and end the reduced fees and waivers that make it affordable. The new price isn't in effect yet, which is exactly why your timing matters right now.