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If you're planning to come to the U.S. for tourism or business, are willing to leave within 90 days, haven't been denied past visas or violated their terms, and come from a country that does not have a history of illegal immigration to the U.S., you may be able to avoid formally applying for a visa before your trip. A so-called visa waiver ("VW") is available to people from the following countries currently participating in the Visa Waiver Program: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the Untied Kingdom.
Each visitor who enters under the a VW must arrive with a transportation ticket to leave the United States. They must also present what's called a machine readable passport, that is, one with two lines of scannable characters at the bottom of the biographical information page. The passport must be good for at least six months past the date of entry. Entry under a VW is permitted on land through Canada or Mexico, but qualifying visitors must show evidence at the border of sufficient funds to live in the U.S. without working.
When you enter the U.S. under a VW, you will not be permitted to change your status to another nonimmigrant classification or apply for a green card without first leaving the country. However, there is an exception for a person who marries a U.S. citizen for are the unmarried children or parents of a U.S. citizen.
Participation in a VW is optional, not a requirement. Those people from countries qualifying for VW can still get standard visitor's visas. You will have more flexibility and rights once you enter the U.S. if you come with a valid visa. |
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Hypothetically, if you can show that you're not just trying to stay in the U.S. permanently, and your total stay will not exceed one year, USCIS may grant you an extension of your B-1 or B-2 stay. Usually, six additional months is as long an extension as you can hope for. You must submit your request for an extension before the date on your I-94 card has passed, but USCIS recommends submitting it 45 days before that. |
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Adjustment of status ("AOS") is the process utilized by a foreign national who is physically present in the United States to become a lawful permanent resident ("LPR"). Adjustment of status is an alternative to obtaining an immigrant visa through a U.S. consulate abroad, a process known as consular processing. Depending on the backlog at USCIS service centers, adjustment of status may be preferred by foreign nationals over consular processing because (1) it avoids the expense and inconvenience of travel back to the home country, (2) AOS applicants, including immediate family members, are entitled to employment authorization and permission to travel while the AOS application is pending, (3) employment-based AOS applicants receive job mobility benefits provided under recent legislation, and (4) there are more options for reconsideration of an unfavorable decision by USCIS. |
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The AOS applicant needs to have:
- been inspected and admitted or paroled (some limited exceptions apply);
- been lawfully here, except for immediate relatives, battered spouses and children, and special immigrants under INA §101(a)(27)(H);
- an immediately available visa number at time of filing;
- submitted an adjustment of status application;
- been eligible to adjust and otherwise admissible.
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The following are bars to adjustment of status (many of these bars can be overcome by filing for adjustment of status under INA §245(i) if the individual is eligible to apply under that section of law):
- Foreign National Crewmen
This limitation applies to those actually entering as crewmen by occupation, purpose, and function, even if admitted in a different visa category.
- Transit Without Visa ("TWOV")
These are foreign nationals proceeding in immediate and continuous transit through the United States to a foreign destination.
- Visa Waiver/Conditional Residents
Foreign nationals admitted as visitors under the U.S. visa waiver program cannot adjust status unless they are immediate relatives of U.S. citizens. Pursuant to INA §245(f), an alien lawfully admitted to the United States for permanent residence on a conditional basis under §216A may not adjust status.
- Unauthorized Employment
Subject to INA §245(i) and 245(k), applicants for adjustment of status who have engaged in unauthorized employment on or after January 1, 1977 are barred from adjustment of status pursuant to INA §245(c)(2). Unauthorized employment is a bar to adjustment of status to persons who engaged in unauthorized employment even after their adjustment application was filed. This bar does not apply to employment-based petitions where person worked no more than 180 days without permission since his last entry into the U.S. [INA §245(k)]. Immediate relatives and special immigrants described in INA §§101(a)(27)(H), (I), (J), or (K) are also exempt from this bar.
- Failure to Continuously Maintain a Legal Status
Status violations during prior visits to the United States as well as during the current stay may render an applicant ineligible for adjustment of status if they cannot take advantage of the relief provided by INA §§245(i) or 245(k). Status violations can be cured if the foreign national is an immediate relative.
Each USCIS district office and service center has its own procedure for filing adjustment of status applications. The local USCIS field office located in Denver, Colorado can provide direct contact via a USCIS field officer or representative. Generally, after filing, the client receives a fingerprint notice. Sometime later, the client is scheduled for an interview. In many cases, certain applicants for adjustment status will not be interviewed. These applicants can include employment-based applicants, children and parents of United States citizens. A decision on all other types of AOS applications will generally be decided at the time of the interview.
Once the foreign national receives an approval notice, he or she must get temporary evidence of permanent residence. The approval notice alone is not sufficient evidence for a foreign national to be readmitted to the United States after leaving, nor is it evidence of employment authorization. Therefore, it is a good practice to obtain temporary evidence of permanent residence, such as an I-551 temporary stamp in the foreign national's unexpired passport. Information on where to obtain the I-551 stamp is usually printed on the approval notice. The I-551 stamp serves as temporary proof of the foreign national's LPR status and is valid for one year, which is normally enough time for the alien to receive the actual Resident Alien Card from USCIS. If production of the Resident Alien Card is delayed, the I-551 stamp may be renewed.
Timeframes for processing adjustment of status applications vary, depending on the volume of applications in each USCIS office. |
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Dependent applicants for adjustment of status who turn 21 years of age prior to the adjudication of their application lose eligibility to adjust their status based upon the principal's original application. USCIS service centers and district offices generally will expedite an adjustment application involving a child who is aging out if the problem is clearly identified and brought to their attention. |
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A foreign national who is placed in removal proceedings (i.e., a Notice to Appear is filed by the USCIS with the immigration court) becomes subject to the jurisdiction of the immigration court. In this situation, the immigration judge has the authority to adjudicate the foreign national's application for adjustment of status. The foreign national must meet the eligibility requirements, including having an I-130 or I-140 Immigrant Visa petition previously approved by USCIS. At the Law Office of Trunnell & Sellers PC, many valuable clients have been served and had their AOS expedited in a professional and courteous manner. We understand that your matter is personal and important to you, and with that idea in mind, we fight for you! |
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