Adjustment of Status from Visitor to Green Card

Can you apply for a green card while you are inside of the United States on a tourist visa? In this video, attorney Jacob Sapochnick addresses this important topic.

Overview

B1/B2 Tourist Visa and Nonimmigrant Intent

The B1/B2 tourist visa is a nonimmigrant visa type that allows foreign nationals to visit the United States temporarily for one specified purpose, to engage in tourism or engage in permitted business activities like attending a business conference. The maximum period that a B1/B2 visitor can remain in the United States is 6 months.

Those traveling on such a visa must maintain what is called “non-immigrant” intent when arriving to the United States, meaning that travelers must intend to depart to their home country at the conclusion of their trip.

Misrepresenting your true intentions for traveling to the United States may spell disaster for you in the future and lead to serious immigration consequences including a bar on your future entry to the U.S., due to misrepresentation or fraud.

Those who intend to live or work in the United States must apply for the appropriate visa type and should not enter the United States on a B1/B2 visa.

Change in Circumstances After Arrival in the U.S.

Now let’s imagine that after your arrival to the United States on a B1/B2 visa, your life circumstances have changed. You’ve become engaged to a U.S. Citizen, you’ve secured a job offer for your dream job and your employer wants to sponsor you for a green card, what happens in these situations? Is it possible for you to change your status from a tourist to a permanent resident? The answer is it depends.

The key consideration here is whether you maintained “non-immigrant” intent at the time of your entry to the United States. Under immigration law, a temporary visa holder who enters the United States and gets married or files their green card application within 90 days of their entry, is presumed to have misrepresented his or her true intentions for traveling to the United States on a temporary visa. Such individuals are generally not eligible to apply for adjustment of status to permanent residence (a green card) from inside the United States.

Travelers must be mindful of the 90-day rule and ensure they are not jeopardizing their status by applying for a green card within 90 days of their entry.

5 Factors for Adjusting your Status to Permanent Residence

In addition to the 90-day rule, the following are 5 factors that will have a bearing on whether you may adjust your status to permanent residence (green card) while in the United States:

You must have entered the United States legally (lawful entry means you have been inspected and admitted at a U.S. port of entry by a U.S. customs or immigration official)

With few exceptions in the law, those who did not enter the country legally will generally not be eligible to apply for a green card while in the United States. Such individuals should consult with an attorney to evaluate their immigration history.

Your qualifying relative must file the I-130 Petition for Alien Relative (or the I-140 Immigrant Petition for Alien Worker if your employer is sponsoring your green card) along with the I-485 Application to Register Permanent Residence or Adjust Status with the U.S. Citizenship and Immigration Services (USCIS) after a minimum of 90-days have passed since your entry to the U.S.

Qualifying relatives include spouses, unmarried children under 21 years of age, and parents of U.S. Citizens.
Qualifying employers are U.S. companies who have extended a job offer to you and are sponsoring your green card application to work in the United States

In addition to having lawful entry, you must be physically present in the United States when applying for adjustment of status to permanent residence with USCIS
You must be otherwise eligible to receive an immigrant visa. Immediate relatives of U.S. Citizens (mentioned above) are not subject to annual numerical limitations on green card issuance, but all others are subject to these limitations. You must check the Department of State Visa Bulletin to determine whether your immigrant category is subject to a waiting period. If it is, you must wait until your priority date is current before you can apply for adjustment of status to permanent residence.
An immigrant visa must be available for you to file your adjustment of status. Immediate relatives of U.S. Citizens are not subject to a waiting period to apply for adjustment of status, but all others are.

Pathways to Adjust Your Status to Permanent Residence

The following are the most common pathways to adjust your status to permanent residence from a tourist visa.

Marriage to a U.S. Citizen

The most common pathway is where the foreign national meets the love of their life and thereafter marries a U.S. Citizen. So long as the marriage occurred 90 days after the foreign national’s entry, and the couple can provide supporting documentation of their bona fide marriage at the immigration interview, the traveler can seek adjustment of status to permanent residence while in the United States.

Employment-Based Green Card Sponsorship

The second most common reason is where the foreign national secures employment with a U.S. Company that wants to sponsor his or her green card application. In such a case, the employer will need to go through a very lengthy process to sponsor the green card, known as PERM. This process involves the filing of a permanent labor certification (PERM) application with the U.S. Department of Labor. This application allows an employer to hire a foreign worker to work permanently in the United States. Only once the PERM application has been certified by the DOL, can the U.S. employer file the I-140 Immigrant Petition for Alien Worker with USCIS to start the green card process.

Due to the complexity and length of time that it takes for a U.S. employer to sponsor a foreign worker’s green card, the employer will need to first file a work visa petition on behalf of the worker. This will allow the employee to live and work in the U.S. for the company, during the green card application process. Some of the most popular work visa options include the O-1 for individuals of extraordinary ability, H-1B for specialty occupations, or J-1 visa. To evaluate which work visa is most suitable for the worker, based on his or her credentials or experience, please consult with an experienced immigration attorney.

EB-5 Immigrant Investor Program

Another pathway that can allow you to apply for a green card is through investment as an EB-5 Immigrant Investor.

The EB-5 Immigrant Investor Program, also known as the EB-5 visa, is a program that allows foreign investors to become lawful permanent residents in the United States. To qualify, an applicant must invest at least $800,000 in an investment project in a rural area or an area of high employment in the United States. The most common way this is done is by working with an approved USCIS Regional Center, which provides investment opportunities in the form of real estate development projects that are funded through pooled investments from EB-5 program participants.

Investors can change their status from a tourist visa to a green card based on EB-5 investment by filing the Form I-526 Immigrant Petition and I-485 application to register permanent residence or adjust status with USCIS. Investors can also seek travel and employment authorization while their green card application is pending, by filing Form I-131 Application for Travel Document and Form I-765 Application for Employment Authorization with USCIS.

Although the EB-5 process can take several years to complete, at the end of the process the applicant receives a 2-year conditional green card. Prior to the expiration of the 2-year green card, the investor must file Form I-829 with USCIS to remove the conditions on his or her green card.

If the immigrant investor has satisfied the EB-5 program requirements, the conditions are then removed, and the 10-year green card is issued.

EB-1A Employment-Based Visa for Individuals of Extraordinary Ability

If you are an individual of extraordinary ability in the sciences, arts, education, business or athletics, as demonstrated through sustained national or international acclaim in your field, you can self-petition for the EB-1A visa for individuals of extraordinary ability. The process begins by filing Form I-140 Petition for Alien Worker with USCIS.

Once approved if your I-140 priority date is current on the Department of State Visa Bulletin, you can apply for the I-485 green card application. Such individuals do not need an employer to sponsor them for a green card.

To qualify for the EB-1A visa you must provide evidence that you have received a major internationally recognized award (such as the Nobel Prize, Grammy, Oscar, etc.), or if you have not received such an award, you can still qualify by providing at least three of the following forms of evidence:

Evidence of Awards and Honors: Lesser nationally or internationally recognized awards or prizes for excellence in your field.
Membership in Associations: Documentation of your membership in associations that require outstanding achievements as a criterion for membership.
Published Material About Your Work: Articles, reviews, and other media coverage demonstrating your achievements and acclaim in your field.
Original Contributions: Proof of significant original contributions of major significance in your field, such as patents, scholarly publications, or innovations.
Authorship of Scholarly Articles: Articles you have written that have been published in major media or professional journals.
Evidence of Critical Employment: Contracts or proof of a leading or critical role for distinguished organizations or establishments.
High Salary or Remuneration: Evidence that you command or will command a high salary or other remuneration for your services compared to others in your field.
Judging the Work of Others: Documentation showing you have judged the work of others in your field, either individually or on a panel.

For artistic fields, applicants may also provide evidence of:

Commercial successes in the performing arts
Your work displayed at artistic exhibitions or showcases

EB-2 National Interest Waiver

Alternatively, those who are working in a field that is of national importance to the U.S. government in the sciences, arts, or business, especially fields that involve critical and emerging technologies, can self-petition for the EB-2 National Interest Waiver petition by filing Form I-140 Petition for Alien Worker with USCIS.

To qualify for a National Interest Waiver, you must have either an advanced degree or exceptional ability, and you must meet the Dhanasar criteria (outlined below).

Advanced Degree

Those applying based on an advanced degree must provide evidence of a baccalaureate degree directly related to their field, and letters from current or former employers showing that they have at least 5 years of progressive post-baccalaureate work experience in the specialty.

Exceptional Ability

Those applying based on their exceptional ability must show that they have a degree of expertise that is significantly above that ordinarily encountered in the profession and meet at least three of the following criteria:

Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
Letters from current or former employers documenting at least 10 years of full-time experience in your occupation
A license to practice your profession or certification for your profession or occupation
Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
Membership in professional associations
Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
Other comparable evidence of eligibility

The Dhanasar Criteria

When you apply for a national interest waiver, you are requesting for the U.S. government to waive the labor certification requirement (sponsorship via employment) because your employment is in the national interest of the U.S. government.

To ascertain the national importance of your endeavor, USCIS looks to the following 3 factors (also known as the Dhanasar criteria).

The proposed endeavor has both substantial merit and national importance.
You are well positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

Your attorney must work closely with you to evaluate your credentials and your field of expertise to provide a strong application in support of the Dhanasar criteria. This is an excellent option for those whose employment has made substantial contributions to the U.S. economy, society, healthcare, the defense industry, and other critical sectors that are of vital importance to the country.

Asylum

Those who have a credible asylum claim can seek protection based on persecution or fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion. Applicants are required to be physically present in the United States to seek asylum. The process starts by filing Form I-589, Application for Asylum and for Withholding of Removal, with USCIS within 1 year of your last arrival in the United States (unless you qualify for an exception to the 1-year filing deadline).

If you are eligible for asylum, you may be permitted to remain in the United States.

Conclusion

While we have discussed the most common ways that foreign nationals adjust their status to permanent residence from a tourist visa, there may be other options available to you that have not been discussed in this article. To evaluate your visa options, please contact our office to schedule a consultation with one of our attorneys.

Contact Us. If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

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