The immigration rules in the USA allow certain* spouses of a U.S. citizens to have their visa overstay excused. They must have proof that they entered the USA in some sort of legal visa status.
What if My Spouse Lost The Passport They Used to Enter the USA?
It still may be possible to get proof that your partner entered the USA legally. The Dept. of Homeland Security has a form called I-102 that you can fill out (it is located at www.uscis.gov) and pay a fee to ask for copy of what is called an "I-94 Card" or "I-94 Entry Record" in order to try to get written proof of entry. The more information you can put on the I-102, the better chance of getting a copy of their I-94 records from the Dept. of Homeland Security.
Another source of entry records may be the airlines, if your spouse flew into an American airport. Most airlines keep a passenger list for a certain period of time and it may be possible to email the airlines and ask for verification of entry. While that does not prove that your spouse entered the USA legally, it provides secondary evidence and it may provide enough information so that the Dept. of Homeland Security can find your spouse's records.
*Why Do You Say "Certain" Spouses of U.S. Citizens?
Some spouses of U.S. citizens cannot get a marriage green card even if they have proof they entered the USA legally. For example, if your spouse committed certain crimes they may not be eligible for a marriage green card. This blog article does not cover all of the reasons that a spouse may not be eligible for a marriage green card.
Exactly Where is the Law that States that My Spouse's Visa Overstay Should Be Excused?
The applicant for a marriage green card must submit proof that they entered the United States with a valid passport and a valid visa with their marriage green card application. (Exceptions are made for visitors from certain visa waiver countries and Canada when no visa is required; for those situations see more detailed blog article - link is below.)
Therefore, if person enters the USA as a B2 tourist, or an E3 Australian professional, or an F-1 student, or many of the other visa categories (but not all), and they overstayed their visa, they may still be eligible for a marriage green card if they are married to a U.S. citizen and if they will have proof they entered the USA legally.
Acceptable proof of inspection (by the immigration officers at the airport) for adjustment of status purposes includes a copy of the ID page of the passport, a copy of the visa stamp (the sticker on one of the pages of the passport) used to enter the U.S., and a copy of the I-94 Card (or the new I-94 download Entry Record).
Do We Have to Submit a Special Form For the Visa Overstay to be Excused?
No, the Immigration Officers are familiar with the law and no special forms are required.
Where Can I Find More Details About This Law?
If you’d like to discuss your case, you can call (619) 235-8811 and ask to speak with Danielle Nelisse, an immigration attorney with 17 years of immigration marriage green card experience.
If she is not at her desk, please leave a voicemail message and she will call you back.
She does not charge a fee to take your call and discuss whether your case would qualify. If you qualify, she can provide you with a quote for how much it would cost to represent you no matter where you reside.
When you call the office, just ask to speak to Danielle Nelisse.
Email firstname.lastname@example.org or call (619) 235-8811 or (877) 884-6644 to ask about your case at no charge.
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Other Immigration Questions Concerning Same Sex Married Couples:
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Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.
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What if my spouse is HIV positive?
Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?