Category: Change of Status

Change of Status Issues

Question: If I apply for a tourist visa (B visa), will I be able to eventually obtain a green card? Answer: In short, yes. There are two major areas of immigration law, permanent resident and non-permanent resident immigration. Many of you know permanent residence to mean obtaining a green card, which can ultimately lead to United States Citizenship. Non-permanent residence (also known as a non immigrant visa) includes temporary visas such as tourist visas (B1 or B2 visa) or temporary work visas (H1-B temporary skilled worker visa) or even fiancé visas (k1 visa) and spouse visas (k3 visas). Temporary visas can sometimes be a good start to legally living in the United States before applying for permanent residence. For example, a fiancé visa can quickly lead to a conditional green card through marriage. A marriage visa can also lead to a green card. Some temporary work visas can lead to a employment based green card through proper planning and application. However, it is always important to keep the issue of “preconceived intent” in mind.

Change of status from B visa to F1 student visa:

In some visa applications such as tourist visas (B-2 Visa) the visa applicant’s intent must be such that they intend on returning home and do not intend on staying in the US. When an applicant tries to adjust status from a B2 visa (tourist visa) to a F1 Visa (Student visa), the USCIS will look very closely at the applicant’s intent at the time of filing for a tourist visa application. If the USCIS concludes that the B visa holder intended to gain admission to the U.S. as a student as opposed to visiting the U.S. as a tourist, the change of status to F-1 student status will be rejected and a visa fraud will be presumed. Moreover, the timing of applying for a change of status application plays some significant role to the outcome of the change of status application. Sometimes, the later you file a change of status application upon entry on a tourist B visa, the more likely the USCIS approves the application. On the other hand, if a request to change from B-2 to F-1 occurs within 60 days of entry into the US, USCIS will likely interpret the change of status as preconceived intent, thus denying the application.

Change of status from F1 Student visa to H1B visa:

Another common preconceived intent is adjusting status from F-1 Student Visa status to permanent residence or green card status immediately upon entry into the US on a student visa. In contrast, a work visa such as a H1-B visa has “dual intent” allowing a H1-B holder to adjust status to lawful permanent resident status. Common ways to obtain a green card from an H1-B are through an employment based green card or marrying a US citizen and adjusting status as an immediate relative. Once you are a lawful permanent resident after waiting the requisite amount of time and complying with other necessary requirements you will eventually be able to naturalize to a US citizen. The main point is that there is much interplay between non immigrant (temporary visas) and immigrant visas (permanent residence – green cards). Through proper planning and application, your immigration goals can be achieved, sometimes all at once, and sometimes one step at a time. But how you execute the plan is as important as the plan.