One of the most common questions we get about Adjustment of Status (AOS) is whether or not one can adjust their status on an expired visa. Unfortunately, the government isn’t absolutely clear about each type of case. There’s even some contradictory language in the Form I-485 instructions.
The instructions for the section “Who is Not Eligible to Adjust Status“ say that you are not eligible for AOS if your authorization to be in the United States expired before you filed the AOS application. However, section 6A and 6B suggest that immediate relatives of US citizens or K-visa dependents who married the petitioner within 90 days of entering might be exempt from this.
Source: USCIS
This appears to allow immediate relatives of U.S. citizens and K visa dependents to adjust their status even if they are on an expired visa. The most common occurrence RapidVisa gets with this type of case is when a K-1 visa holder doesn’t adjust their status before their visa expires. They’ve married the petitioner, but haven’t had the need to work or leave the U.S., so they wait quite a while to file for the adjustment of status. In our experience, the vast majority of these are approved, likely due to the above #6 guideline.
Though you don’t need to adjust your status immediately, there are still many reasons you should, such as being able to legally work.
What about adjusting status on an expired tourist visa or visa waiver (ESTA)?
The second most common type of customer asking this question is someone who entered on a tourist visa, or on visa waiver (ESTA), but didn't adjust status before they overstayed. According to the I-485 instructions, it would appear these should fall into the #6 guideline if they are married to a US citizen. See our article "Can I Adjust My Status if I Get Married in the USA?" for more basic information about adjusting status based on marriage.
The second most common type of customer asking this question is someone who entered on a tourist visa, or on the visa waiver program, but didn’t adjust status before they overstayed. According to the I-485 instructions, it would appear these should fall in the #6 guideline if you are married to a US citizen.
Which cases can RapidVisa help with?
To wrap up everything mentioned in this article, we can help you adjust your status if you are married to a U.S. citizen or are the step-child of a U.S.citizen and entered the U.S. legally through one of the visa types on this page, regardless of if your visa is currently expired. We get 99.7% of these cases approved every day.
If you still have questions, give us a call right away at 719-208-7033, or toll-free at 800-872-1458.
