I have a European friend who overstayed his tourist visa (he met a girl, fell in love, had a falling out with his family back home so he stayed). He has consulted an immigration lawyer and they have a plan for marriage and then a path to a greencard. The problem he is having now is that in order to get married he needs a valid picture ID. In New Jersey that includes a valid passport for non citizens. His passport has expired however. Is there a way for him to renew his passport without having a valid visa/greencard? Is this something he has to speak to his consulate about?
Hmm… Erm… I’ve known people who have been able to get their passports renewed without leaving the US (let’s just say they overextended their visas).
For all accounts, even if he is undocumented alien in the US, he is still a citizen of whatever his country is, and the consulate/embassy will help him get his passport renewed. The US has nothing to do with the other country issuing passports to its own citizens.
IANAL, but I seem to remember an immigration lawyer saying that if you overstayed your visa, then getting your greencard through marriage could be a problem. There could be different variables in the situation, but from what I understood, resolving the issue actually required exiting the country and coming back in legally.
Obviously, what your freind needs, is an immigration lawyer. The process is not easy. I do not recommend attempting this without a lawyers advice especially since the situation is complicated. You don’t need to have the lawyer file the papers and all that, but an appointment is very useful. I know from experience.
Thanks for the answers so far. It seems that the German consulate is requiring proof of legal residency in order to renew his passport, but since he overstayed his visa, he has none. Is there any state that will accept his expired passport and/or copy of his German birth certificate as proof of age an ID in order to get the marriage license?
It probably won’t matter if his passport is expired. He’s not using it for international travel, he’s just using it as a form of ID, which it still is.
IANAL, IANAIL, etc.
Whether he can or can’t renew the passport will depend on his country’s laws, but yes, he needs to contact the consulate or embassy. Normally you can renew the passport at your local consulate or embassy. After all, it hasn’t been such a long time since “going back home” across the Atlantic took weeks.
He appears to be screwed in this case, though. Looks like he needs to go back home, then apply for a passport there and then apply for a “I wanna get married” Visa.
That’s really bizarre. Even if he were being deported from the U.S. for overstaying his visa, the U.S. government would have to get permission from the German government to send him there, which is usually done in the form of having the consulate renew his passport. And how on Earth would he even board a plane to leave of his own accord without a valid passport?
I’ve never heard of a consulate refusing to renew a passport for its own country’s national solely because the person had no valid U.S. immigration status. Seriously, that’s weird.
P.S. As for where to get married, try New York - their websitesays marriage license applicants need ID to get married, and mentions a passport as an option for ID, but doesn’t say anything about it needing to be a valid passport.
It might be worth talking to an immigration attorney before getting married, as well. The United States government will not prevent a marriage, but just because you’re married does not mean that the spousal visa (I believe it’s the K-series) is automatic. Overstaying a visa and marrying before beginning the application process are both red flags, as I understand it. My parents found this out the hard way, though it turned out all right eventually.
I second the call to lawyer up. I went through the permanent residence through marriage process a few years ago without a lawyer. It went well enough, but our case was very simple and there were no gotchas (no visa overstays, no expired passports, dual-intent status etc). That said, it was still a mountain of forms and months of waiting, even through our case was as easy as it can be.
I actually thought coming to the US on a tourist visa and then attempting to get a green card through marriage was in itself a difficult proposition, even without the overstay, since you’re not allowed to come to the US on a tourist visa with the intent to stay. That may very well have been the case, but I’m sure you’ll have to make a convincing case as they may be suspicious.
The tourist visa, the overstay and the weird expired passport thing is going to make this quite complicated I think. Your friend should not proceed without competent legal assistance.
A K-visa is for a fiancee who enters the country for the specific purpose of marrying an American citizen. It is not relevant to a person who entered on a tourist visa and overstayed, later deciding to marry. The latter needs the immediate legal advice of an experienced immigration attorney before deciding what the best and most beneficial course and sequence of actions would be
This is not a simple process - do not try this at home! Do not attempt without immigration attorney! Keep your hands inside the car at all times!
At any rate, looking at the website for marriage in New Jersey, nowhere does it say that the ID presented must be currently valid:
http://www.state.nj.us/health/vital/marriage_apply.shtml
My understanding is that the K visa is for people applying outside of the US, and allows you to come to the US to get married. If he is already in the US he would apply for a change of status to permanent residence. Doing that from an overstayed tourist visa sounds like a nightmare (is it even possible?), so I second your call for legal assistance, although it seems like the friend in question already has legal counsel.
Even leaving the US to come back in on a K visa may be difficult (and not having a valid passport isn’t going to help). There is a distinct lack of forward planning here regarding visas and passports that needs to be resolved quickly. US immigration is intimidating enough even if you are well prepared.
Thirded, fourthed, whatever. In addition to the issues already mentioned, if one has overstayed one’s authorized period of stay by 180 days or more, and one leaves the U.S., there is a three-year bar to returning in ANY status. If the period of the overstay is one year or more, the bar is extended to 10 years. Waivers to these bars exist, but they are a pain in the ass to get and are by no means a slamdunk (my office does them, and I have helped prepare one particularly messy one).
There are many, many issues that need to be addressed here. I strongly advise that your friends not do anything drastic without consulting with a competent immigration attorney. If they aren’t happy with the one they have now, PM me and I’ll ask my boss for a local recommendation.
Eva Luna, Immigration Paralegal
According to him it was his lawyer’s advice that he should marry and then she can petition for a change of status for him.
Their going to give using his expired passport and birth certificate a chance. I got my fingers crossed for them. He is terrified of having to leave the country, since he’d be stuck for 10 years at least.
Eva, I’m PM’ing you. I’m sure a second opinion won’t hurt them.
Thanks everyone!
IANAIL, but how would this work as a possible solution?
- Get passport renewed (shouldn’t the consulate renew it so he can return to Germany?);
- Leave US via land to Canada/Mexico (assuming as German citizen he doesn’t need a tourist visa prior to entry) - I doubt they have any interest in why his passport doesn’t show a US visa (“Hey, it’s new - the visa was in the old one”), and the US is not yet checking passports for people not leaving by air.
- Go back to Germany.
- Apply for a marriage visa from Germany. At this point he’s out of the US, and (presumably) they are unaware he overstayed his earlier visa. As long as he doesn’t have to lie in answer to any questions about immigration offenses (they may only ask about discovered issues, like “Were you ever deported or required to leave as a result of an offense”) he may be OK.
It’s assumption 4 that sinks this plan. Visitors. other than those from Canada, are given a card (called an I-94 or I-94W) which is stapled into their passport. It is surrendered on departure and provides a record that the visitor actually did leave the USA. If the person leaves via the Canadian border, it is surrendered to Canadian immigration officers. In the case of Mexico, I believe it goes to US officials before crossing that border.
For this reason it’s not safe to presume that the US authorities would be unaware that a visitor had overstayed. In fact, it’s pretty likely that they would be aware that his I-94W was never returned. Obviously the fact that he’s in Germany proves he must have left sometime, but there would be no proof of the date of departure.
I’d echo the suggestion to contact an immigration attorney ASAP.
:: bump ::
Out of professional curiosity, did you ever find out whether NY will accept an expired passport as photo ID for marriage purposes? I can’t find anywhere nearby that will, and I now have a client with an expired passport who is having a heck of a time finding out how to renew it so he can get married locally, and is from a country with, shall we say, much less of a U.S. diplomatic presence than Germany has. (I can’t get a human on the phone at their Embassy, and I’m waiting to see whether I have better luck via e-mail. They have no website of any kind, let alone any online info about how to apply for a passport.)
Cook County (where Chicago is) already told me point-blank that they won’t accept an expired passport as ID to get a marriage license, and I don’t know that he’d even be able to board a plane if he needs to renew his passport in person. And he has no other photo ID, nor is he eligible for an IL driver’s license or state ID. I think there may be a long road trip in his future.
By the same token, I had no problem renewing my United States passport in Germany, although I did make it to the consulate before it expired.
As mentioned above, some countries will not renew a passport for their citizens if said citizens happen to be in an “undocumented stay”/overstay visa status. What they will do, though, is provide them with documentation to facilitate their departure from the country in which they are in the aforementioned status. Other countries are merely concerned with passports as proof of nationality and are not concerned with the applicant’s visa status.
All I’m going to say on this matter is that the attorney he consulted is far more knowledgeable about this process than many posters who are spewing nonsense about immigration law.
His lawyer should be able to handle the passport/identification necessary for marriage license issue, too.
I actually am living in the U.S.A. with a Green Card (they are not actually green, BTW) acquired through marriage to a citizen, although I did not have the visa or passport problems that your friend has. A Green Card holder is required to have a valid passport of their home country. I have to keep mine (UK) up to date. He needs to get his passport renewed, quite apart from any identification issues.
The claim that the German Embassy/Consulate won’t renew it for him seems very odd (unless he has some problem with identifying himself to them - but the expired passport ought to be fine for that). Why would they do that to one of their citizens? What if the U.S. ended up deporting him? Would Germany refuse to take him?