Change of Status From Visitor Visa to Green Card - Virginia Beach

Can You Apply for a Green Card While on a Tourist Visa?

The short answer is ‘it depends’. You can apply for a green card to become a lawful permanent resident in the U.S. while you’re visiting on a tourist visa if you meet certain specific requirements, discussed in more detail below.

U.S. immigration law (under section 245(a) of the Immigration and Nationality Act (INA)) allows people to file for a change of status (Adjustment of Status) if they enter the United States on a visitor visa and meet the requirements to apply for lawful permanent residency (LPR) in the U.S. But the applicant has to meet certain conditions. The process can be complicated and difficult to navigate, (completing Form I‑485, and if applying under Section 245(i) Form I-485 Supplement A,) so many people choose to work with an immigration lawyer on adjustment of status applications and their underlying petitions..

According to the Immigration and Nationality Act (INA), Section 245(a), the following must occur in order for you to adjust status in the U.S. This applies whether you entered the U.S. on a tourist visa or some other non-immigrant visa:

You must have been inspected and admitted into the U.S.; or inspected and paroled into the U.S. For example, you have a tourist visa, and you entered at a U.S. port of entry and presented yourself to an Officer, who reviewed your passport and visa, and admitted you into the U.S. for 6 months.
You must properly file an adjustment of status application. Note the use of the word ‘properly’.
You must be physically present in the U.S.
You must be eligible to receive an immigrant visa
An immigrant visa must be immediately available when you file for adjustment of status and at the time a final decision is made on your application.
You are admissible to the U.S. for lawful permanent residence or eligible for a waiver or other form of relief if you are inadmissible.

One very common scenario where one may be eligible to apply for adjustment of status is if a person enters the U.S. on a tourist visa and then during her visit, gets married to a U.S. citizen. She has been inspected because she entered the U.S. using her tourist visa and then was admitted to the U.S. She is physically in the U.S. and if her husband files a petition for her, she is eligible to receive an immigrant visa. Furthermore, foreign spouses of U.S. citizens are immediate relatives, and thus, an immigrant visa is immediately available for her when she files and when an immigration officer adjudicates her I-485 (Application for Lawful Permanent Residence). Assuming she is admissible, the foreign spouse would meet all of the requirements to adjust her status from her tourist visa to a green card holder.

There is also another provision under Section 245(i) of the INA, which allows adjustment of status for applicants who have not been inspected or paroled and admitted, who have worked without authorization, and/or have failed to maintain lawful status since their entry into the U.S. Also known as the LIFE Act or “la ley de la multa” in Spanish, you may be able to adjust your status under 245(i) if you meet the following requirements:

You are the beneficiary of a labor certification (ETA 750); an I-130 family petition; or an I-140 petition for alien worker filed on or before April 30, 2001;
You must file Supplement A (Form I-485A) with your Adjustment of Status Application (Form I-485);
In most cases, you must pay a penalty of $1000.

This article discusses some of the most common questions we encounter when it comes to change of status (the first steps in how to get a Green Card) while in the U.S on a tourist visa.

One important point to make and be aware of so you don’t jeopardize your status is you can’t enter the U.S. on a visitor or tourist visa with the intention of applying for a green card and filing the I-485 application. It is only appropriate for you to visit the U.S. and decide to apply for a green card after you’re already here.

In addition to the example of marriage to a U.S. citizen while here on a tourist visa, if you fall under one of the categories below while you’re visiting the U.S. on a tourist visa, you may be eligible to file for adjustment of status. You might be able to file the I-485 green card application if:

You have a qualifying family member who is a U.S. citizen or lawful permanent resident
An employer has offered you a specific job and is willing to sponsor you to take that job
You have extraordinary ability in the sciences, arts, education, business or athletics
You are an outstanding professor or researcher, or you’re a multinational manager or executive who meets certain criteria
You’re a physician who agrees to work full-time in a clinical practice in one of several underserved areas
You’re an investor (certain investment criteria apply)
You are a religious worker; you worked for the U.S. government in Iraq or Afghanistan as a translator for at least a year; you’re an international broadcaster or you’re part of one of a handful of international organizations;
You were granted asylum or refugee status at least a year prior to your change of status petition
You’re the victim of human trafficking, abuse, or another crime

There are a few other options, as well, so you should talk to an attorney about filing an adjustment of status application and underlying petition if you’re in the U.S. on a visitor visa.

This article will focus on the most common types of cases we help people with when they change their status from a tourist visa to a lawful permanent resident of the U.S. or “green card holder” as well as frequently asked questions. Please note that change of status to lawful permanent resident may be available for other non-immigrant visa holders such as F-1, H-1B, or H-3 visas.

Family-Based Adjustment of Status

Immediate Relatives of U.S Citizens

Spouses, unmarried children under 21 years of age, and parents of U.S. Citizens are generally eligible to change status while on a tourist visa in the U.S. These family members are considered to be immediate relatives and visas are always immediately available for the spouses, unmarried children under 21, and parents of U.S. Citizens.

Some Potential Immigration Scenarios

Scenario 1: Parent(s) of a U.S. Citizen. Your mom is here visiting the U.S. from India so she can go to your daughter’s high school graduation in New York. When she enters the U.S. she is asked the purpose of her trip and she tells the Customs & Border Protection (CBP) officer that she is going to the graduation ceremony and also intends to visit her other children and grandchildren who live on the West Coast. The CBP officer tells her that she can remain in the U.S. for 6 months.

During her visit, your mom sees how you struggle with the balance of going to work and caring for your three children; she also realizes that she misses you all very much and would not like to be so far away anymore.

Since you are a U.S. citizen and your mom has no history that makes her inadmissible to the U.S., you can file a family petition for your mom (the I-130 Alien Relative Petition), and she can file a green card application based on your I-130 petition.

Scenario 2. Spouse of a U.S. Citizen. Your girlfriend from the Philippines has a B1/B2 tourist visa and is finally coming to meet your family. The two of you met in Dubai two years ago and have a long-distance relationship, but she hasn’t been able to travel to the U.S. due to COVID restrictions.

She enters Dulles International Airport and tells the Officer that she is coming to see you. They request to see her return ticket and she also shows proof that she is employed back home. They allow her to enter the U.S. for 6 months.

In the middle of her trip, at a family party, you get down on one knee and propose to her. She says ‘yes’.

You decide to get married in the U.S. so that your family can be present at the small wedding. As a U.S. citizen, you may petition for your wife and she can apply for adjustment of status assuming she has relevant and identifying documents and a record with nothing in her history that makes her ineligible to get a green card.

Spouses, unmarried children under 21 years of age of Lawful Permanent residents

If you are a lawful permanent resident of the U.S. (green card holder) and your spouse and/or unmarried child or children are here on a tourist visa(s), AND a visa is available per the United States Department of State (aka State Department or US Dept of State) monthly Visa Bulletin, your spouse and children may be able to apply for adjustment of status while here on their B1/B2 visas.

Employment-Based Adjustment of Status

While it is not as common for an applicant here on a tourist visa to apply for adjustment of status based on an employment petition, it is certainly possible – self-petitioners in the EB-1 extraordinary ability category, for example. Another example may be a nurse who is licensed in the U.S. and is visiting on a tourist visa may discover an opportunity to be directly petitioned by a hospital or U.S. agency.

These are only two of several possible scenarios, so it is best to have your case evaluated by an immigration attorney.

Can You Stay in the U.S. While Adjusting Immigration Status?

Generally, you can stay in the U.S. while adjusting status once your I-485 Application for Adjustment of Status is filed, even if the date on your I-94 expires. In fact, unless you have filed an application for Advance Parole (Form I-131) and it has been approved and received by you, you are at risk of abandoning your I-485 application if you travel outside of the country without Advance Parole.

How Long Does it Take to Adjust Status to “Permanent Resident”?

It takes the U.S. government a significant amount of time to adjust an immigrant’s status to lawful Due to Covid and the adverse effects of the global pandemic, USCIS processing times are taking longer than ever for many types of cases, including adjustment of status. Generally, completing the process takes over a year and in some jurisdictions over a year and a half. It is a long journey, and it is beneficial to have an immigration attorney guide you through it all. Some cases may be shorter, where an in-person interview is waived. For example, for many adjustment of status cases, where a U.S. Citizen’s son or daughter files a petition for a parent(s), the in-person USCIS interview is waived.

How Much Does it Cost to File an Adjustment of Status Application?

The I-485 application is currently $1140, plus a biometrics fee of $85. Biometrics must be paid for applicants who are 14-79 years of age. There are no biometrics fees for applicants who are outside of this age range. Always check the filing fees on the USCIS website before filing any immigration application. They change periodically and if you file your case with the wrong filing fee, it could be rejected.

Who Qualifies for an Adjustment of Status?

Many people in the U.S. as students, tourists, and other visitors may qualify to file for adjustment of status to become lawful permanent residents and, eventually, naturalized citizens. You could qualify if you have a citizen or Lawful Permanent Resident family member who is willing to sponsor you, if you find employment with a qualifying company, or if you meet certain criteria – such as being a person of extraordinary ability.

And even if a person entered the U.S. without being inspected, they may be eligible to adjust status under 245(i) if they meet very specific requirements.

For those who want to file an adjustment of status application (Form I-485) from a visitor visa to a green card, your first step should be to consult with an immigration attorney so that we can determine whether you fit the criteria to adjust your status while in the U.S. on a tourist visa.

Can You Work While Waiting for Adjustment of Status?

You can work while waiting for an adjustment of status, but only under specific circumstances. For example, if you’re in the U.S. on a work visa, you’re free to continue working. If you’re not in the country on a work visa, you may still be able to work – but you must file the application for Employment Authorization (Form I-765) along with your Adjustment of Status Application and wait for approval before you can legally get a job and start working in the U.S.

Do You Need to Talk to a Lawyer About Change of Status From a Visitor Visa to a Green Card?

If you’re in the U.S. on a visitor visa, we can help you determine whether you can change your status to a lawful permanent resident. Call or text us today for an appointment at 757-464-9224 to schedule a consultation – we’ll ask you some questions about your situation and help you determine the best course of action. Our virtual consultation will give you peace of mind, whether you are seeking adjustment of status based on a family or work petition or one of the other categories available.