Can I Apply For My Green Card While in the United States (Adjustment of Status)?
To be eligible to file for adjustment of status, you usually must have lawful status in the United States, you must have a visa immediately available, and you must not be otherwise inadmissible.
Do I have to Be in Lawful Status to Apply for a Green Card while in the United States?
Most people do have to be in lawful status in order to apply for adjustment of status. There are a few exceptions to this rule, listed below.
- Immediate Relatives. However, while an immediate relative does not need to be in lawful status to apply, they must have a lawful entry. This typically means that they lawfully entered on their last entry with a visa.
- People who have very old petitions under 245(i). This provision is for people who had an I-130/I-140/LCA filed on their behalf before April 2001. Because these petitions are so old, if you think you may be eligible under 245(i), you should speak to an immigration lawyer. Unlike immediate relatives who must have a lawful entry, people who file under 245(i) do not have to have a lawful entry.
- People who are applying for adjustment of status based on extreme cruelty committed by a US Citizen/LPR spouse (and sometimes former spouse), US Citizen/LPR parent, or a US Citizen child.
What if I Entered with a Tourist/Business Visa (B1/B2)? Can I still Adjust My Status?
One issue that is common and worth highlighting is the issue of non-immigrant intent. For example, if a person enters the United States on a tourist visa, the Department of Homeland Security (“DHS”) expects that person to act as a visitor. In other words, DHS expects that the foreign national will visit the United States, but then leave before their authorization expires (usually 6 months). If a person enters on a tourist visa but then decides to adjust status, DHS could view the initial entry as a misrepresentation and bar the applicant from receiving the green card or even visiting the United States again. It is very important that a foreign national comply with the terms of the visa. Of course, circumstances change, and an individual may need to change his/her initial plans. It is very important to speak with an immigration attorney if you need to change your plans pertaining to your visa after you enter the United States, as the process of applying for a different status can be ridden with pitfalls.
What Happens if my I-94 Expires before my Green Card Application is Decided?
An I-94 is the period you are authorized to stay in the United States in your status. For example, if you have H-1b status, you may stay in the United States in H-1b status until your I-94 expires. For many people, their I-94 will expire before they get a decision on their green card application. You are authorized to stay in the United States (and in many cases must stay in the United States) while your application for your green card is pending.
However, if your application were to be denied for any reason, you would immediately begin to accrue “unlawful presence,” which can have some severe immigration consequences. That’s why we recommend if possible, to maintain your underlying status. For example, renewing your H-1b status while your green card application is pending.
Sometimes maintaining your underlying status won’t be possible, like if you have the B1/B2 visitor visa. Once you file a green card application, you are declaring that you want to live permanently in the United States, and the visitor visa is only for people who want to visit the United States. There can be many pitfalls if you are applying after entering with a visitor visa, particularly if you apply soon after your entry. We highly recommend that you speak to an immigration lawyer if you are considering filing for a green card after entry on a visitor visa.
Who can I Talk to if I want to File for my Green Card while in the United States?
Shaftel Law has a team of immigration lawyers and experts who are happy to speak to you about your immigration questions. Call 303-872-6985 or fill out our contact form https://www.lawshaftel.com/contact-us/.