Typically, a person who overstays their visa in the United States starts accruing unlawful presence once reaching 18 years of age. Unlawful presence in the United States is what typically bars a person from changing their visa status in the US, as well as in some cases, their immigrant status.
There are some exceptions to this rule which allows a person who has overstayed to adjust status and are mainly in the immediate relative family-based category of immigration law, which include the following:
- Spouse of a U.S. Citizen (IR-1)
- Unmarried Child Under 21 Years of Age of a U.S. Citizen (IR-2)
- Orphan to be adopted[under the age of 16] in the United States by a U.S. citizen. (IR-4)
Most DREAM Act candidates who are eligible for 245(i) are usually eligible because their Parents have pending or past denied immigrant applications. Neither will end a person's eligibility for 245i. This benefit for most DREAM Act candidates is typically called 'Derivative Grandfathering under 245i. A DREAM Act candidate who has Derivative Grandfathering benefits who is an overstay can file any immigrant application, whether it be employment based or family based and have their adjustment application adjudicated here in the United States. Typically, USCIS will require proof that you're 245i eligible should you attempt to use the benefit and this can usually be proven by showcasing your name on an immigrant application that has been filed with USCIS before April 30th, 2001 and a payment of a $1000 fee. Those using the 245(I) benefit can only file immigrant [Green card] applications not visa applications [e.g. student visa]. You can find out if you're eligible for 245(i) by downloading the following PDF file from USCIS.
For further information concerning Employment based immigrant applications please consult the Employment-Based Visas page on the U.S. Department of State website.
For further information concerning Family Based immigrant applications please consult the Family Based Immigrants page on the U.S Department of State website.