How do I stay in?

Both immigrant and nonimmigrant visas can give one a path into the country, but, generally, only immigrant visas allow one to stay permanently. I say “generally” because there are other ways that one can more or less stay indefinitely in the U.S., like asylum or an H-1B post-sixth year extension. But immigrant visas lead directly to lawful permanent residence, or green cards, with the option to seek citizenship after some additional period of time.

Who is eligible for a green card?

1. Family-Based

If you are the spouse of a U.S. Citizen or the parent of a U.S. Citizen that is over 21, you are an immediate relative and are in prime position to receive a green card. Immediate relatives can file the Form I-130, which establishes that the individual is eligible for a visa, and immediately request issuance of the visa / green card.

If your relationship is through a lawful permanent resident or you are an unmarried son/daughter of a U.S. Citizen or the brother/sister of a U.S. Citizen, then you can file the Form I-130, but you cannot file for a green card until a visa becomes available. There are a limited number of visas available for non-immediate relatives, so until one’s “priority date” becomes current on the Visa Bulletin, one cannot seek a green card. Instead, you wait. For some categories, you could be waiting over twenty (20) years.  For others, it could be merely a matter of weeks or months.


Government efficiency at its finest.

2. Employment-Based

As with family-based immigration, there are multiple types / categories of immigrant visas, each with their own schedule for visa availability.

EB-1 Visas are for workers with extraordinary ability, whether it be in the arts, sciences, or another field.

EB-2 Visas are for members of the professions holding advanced degrees. Basically, if you have the equivalent of a bachelor’s or higher, you can usually slide in under EB-2.

EB-3 Visas are for skilled workers, professionals, and others.  This is more or less the “catch-all” category.

We’re going to skip EB-4s because they probably aren’t relevant to you.

EB-5 Visas are the visas you hear about on TV when people complain about selling green cards to the Chinese, etc. EB-5s can be very complicated, but generally, for a large investment in a job-creating American project, a foreign national can receive a green card.

As of this moment, EB-1s and some EB-2s are current, meaning that visas are available right away.  However, that is not the case for individuals from certain countries, such as India, China, Mexico, and the Philippines.

3. Other Categories

Once again, this listing is not intended to be exhaustive.  That being said, it is worth noting that one can also obtain a green card through the diversity lottery or asylum.

Can I Apply for Citizenship?

If you’ve been a lawful permanent resident for at least five (5) years, then you can apply to become a citizen, provided you meet the other eligibility requirements (e.g., no serious crimes, etc.).  BUT, if you’re married to a U.S. Citizen, then you apply after only three (3) years.

Awesome Quirks that You Don’t Hear About Enough

There are a few ways to stay in the U.S without a green card that a lot of folks don’t know about unless they practice in this area or its directly relevant to them.  My favorite is dubbed AC 21, which provides for indefinite extensions of H-1Bs in certain circumstances. Basically, if the immigrant is on an H-1B, he or she usually only has six (6) years in the U.S.  However, because USCIS is taking so ridiculously long to process some visa categories, Congress passed a law permitting USCIS to grant extra years of eligibility to holders of an H-1B visa that have pending or approved PERM petitions or Form I-140s or that cannot receive a visa because the priority date is not yet current. So, if you’re from India, have an approved Form I-140, and would otherwise be waiting for a decade to adjust status to lawful permanent residence, you can now stay in H-1B status until your priority date becomes current.

This is particularly great because of President Obama’s recently announced immigrant executive order. Though regulations are not out yet, he intends to allow individuals in this situation to go ahead and file for adjustment of status (i.e., a green card) even before their priority date becomes current. Having an adjustment of status petition filed grants additional benefits to the intending immigrant, so this is a win-win for those being held up by USCIS visa availability delays.


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