Overstay or Unauthorized Work: Can You Still Get a Marriage Based Green Card

Mr. Lehmann appeared visibly anxious throughout his consultation for his marriage based green card petition, seated beside his U.S. citizen spouse. On paper, most of things seemed in order. Their marriage was genuine. They were expecting their first child. Both had stable employment. There were no apparent red flags. 

As the consultation drew to a close, the source of his concern finally surfaced. Quietly, and with hesitation, he said, “Mr. Cho, there is something I need to disclose. I worked in the United States before I had employment authorization.”

Few issues generate more anxiety in marriage based green card cases than a prior overstay or unauthorized employment. Many couples fear that a past immigration violation automatically disqualifies them from permanent residence. In reality, United States immigration law draws critical distinctions based on the petitioner’s status and the applicant’s manner of entry. Understanding those distinctions is essential before filing any marriage based application.

What are Overstay and Unauthorized Work

An overstay occurs when a foreign national remains in the United States beyond the authorized period of stay. Unauthorized employment refers to working without proper authorization or outside the scope of approved status. While both are immigration violations, they are treated differently depending on the legal context of the case.

In marriage based cases, these issues are often misunderstood because the consequences vary significantly based on whether the sponsoring spouse is a United States citizen or a lawful permanent resident.

When the Petitioner Is a U.S. Citizen

If the sponsoring spouse is a U.S. citizen, immigration law provides important forgiveness provisions. Under current law, many overstays and instances of unauthorized employment are forgiven for immediate relatives of U.S. citizens, provided the foreign national entered the country lawfully.

This means that a spouse who overstayed a visa or worked without authorization may still be eligible to adjust status inside the United States through marriage to a U.S. citizen. USCIS does not ignore these violations, but the law allows adjustment despite them. Disclosure remains mandatory, and failure to disclose can cause far more problems than the violation itself.

However, this forgiveness does not apply to every situation. Entry without inspection, misrepresentation, or certain criminal issues can change the analysis entirely and require a different legal strategy.

When the Petitioner Is a Lawful Permanent Resident (Green Card Holder)

The legal landscape is far less forgiving when the sponsoring spouse is a lawful permanent resident. In these cases, overstays and unauthorized employment are not automatically excused. Adjustment of status may be barred, even if the marriage is genuine and well documented.

For many couples in this situation, consular processing becomes the viable option. That path may raise additional concerns, including unlawful presence bars and the potential need for waivers. Strategic planning is critical before filing any application, as an incorrect filing can trigger consequences that are difficult to reverse.

Lawful Entry Still Matters

One of the most important factors in any marriage green card case involving prior violations is whether the foreign national entered the United States lawfully. A lawful entry, even many years ago, preserves adjustment eligibility in cases involving U.S. citizen petitioners.

By contrast, entry without inspection creates a separate legal barrier that is not cured by marriage alone. These cases require careful analysis and often involve waivers or processing abroad.

Disclosure and Credibility Are Essential

USCIS expects full and accurate disclosure of immigration history. Unauthorized work and overstays must be disclosed on all forms. Attempting to minimize, omit, or mischaracterize past violations often results in credibility concerns, Requests for Evidence, or denials.

Officers focus not only on the violation itself, but also on whether the applicant demonstrates honesty and consistency throughout the process. A well prepared filing explains the circumstances clearly and directly, without unnecessary narrative or evasion.

Practical Strategy Matters More Than the Violation Itself

Many cases with prior overstays or unauthorized employment are approved when filed correctly. Problems arise when couples rely on generalized advice, online forums, or assumptions that do not apply to their specific facts.

Timing, filing location, waiver eligibility, and petitioner status all matter. What works for one couple may be legally improper for another.

Final Thoughts

A prior overstay or unauthorized employment does not automatically prevent approval of a marriage green card. However, these issues significantly affect strategy and must be addressed with precision. The law offers relief in certain circumstances, but only when the case is structured correctly from the outset.

At Cho Law LLC, we evaluate immigration history carefully before filing and advise couples on the safest and most effective path forward based on their specific circumstances. Thoughtful planning can prevent unnecessary delays and protect long term immigration goals.

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Disclaimer: This article provides general information and should not be construed as legal advice. For guidance tailored to your specific circumstances, please consult with a qualified immigration attorney.