B1/B2 to Green Card

Posted on May 16, 2006 by Warren Wen | Category: Immigration

Changing Status from B-1/B-2 to a Green Card

A large number of foreigners enter into the United States every year with B-1 (for tourist) or B-2 (for business) visas which allow them to stay in the United States for a short period of time. After entering into the U.S., for different reasons, many of them prefer to stay and work in the U.S. for a longer time.  In reality, however, only a few of them have successfully changed their status to that of lawful permanent residents in the past.  The majority ended up staying illegally in the U.S. This not only has brought tremendous inconveniences to their lives, but they have to face the risk of being deported everyday.  As a result, it is very important for foreigners who come to United States with B1/B2 visa to know how to keep their status legally in the U.S. in a way so that they could become a lawful permanent resident in the future.

We have many inquiries from clients regarding how to apply for a green card after entering the U.S. with B-1/B-2 visa.  Here, we will briefly address the two key points regarding the change of status in the U.S.

First, aliens must meet the basic qualifications required to apply for a green card. Generally speaking, for most aliens, there are two basic immigration categories under which aliens could apply for a green card: Family-based category and Employment-based category.  Under family-based category, a qualified alien can change his or her status if he or she marries a U.S. citizen or a permanent resident. Under the employment-based category, a qualified alien can change his or her status if his employer is willing to sponsor him or her for the green card. Apart from these two basic immigration categories, Asylum could be another option.  However, asylum is only available to those aliens who are unable or unwilling to return to their home country due to past persecution or well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Secondly, under normal circumstances, an alien must keep his or her status legally before he or she filed his or her I-485 application for green card.  There are quota limitations for many family-based and employment-based categories.  The only exception is for the aliens who get married to U.S. citizens.  To handle the quota situation, the USCIS has set up a visa bulletin to help the aliens in finding out when immigration visas are available for the people in each category.  Aliens cannot file the I-485 application for green card unless the Visa Bulletin indicates that and an immigration visa is available for him.  Under most of the categories, it takes a long time before an alien can file his or her I-485 application.  During this long waiting period, he or she would need to go back to the original country to apply for green card if the alien failed to keep his or her legal status, unless the alien is eligible for Section 245(i) (special rules under Section 245(i) allow qualified aliens to apply for green card without leaving the U.S.).  According to the immigration law, an alien who left the country after overstaying in the U.S. for more than a year is not allowed to re-enter the U.S. within ten years.  Generally, an alien must wait for at least two years and up to ten years before he or she could become a lawful permanent resident.  Yet, B-1/B-2 visa allows an alien to stay in the U.S. legally for no more than six months in general.  Then, how could the aliens keep their legal status while the case is being processed?  The following may provide answers:

  1. Apply for Student status (F-1). A student status has a longer validity date. With F-1 status, an alien could easily stay in the U.S. legally for three to five years. In order for an alien to change his or her B-1/B-2 status to a student status, he or she must enroll in an academic program in a school approved by the U.S. government. Additionally, the alien must have enough money or help from others to support his study in the U.S.
  2. Apply for an employment-based status (H-1B or L-1). To qualify for an H-1B the alien must have a job offer from a qualified U.S. employer for work that requires a bachelor’s or higher degree. He or she must have the correct background to qualify for the job offered.  H-1B is initially valid for three years.  Upon expiration, it can be extended to another three years. An alien is not allowed to extend the H-1B after six years unless he or she falls into a special category. To be eligible for an L-1 visa, in addition to other requirements, an alien must be a manger, executive or person with special knowledge of a multinational company. L-1 status is normally valid for one to three years.
  3. Apply for E-1/E-2.  E-1/E-2 would only be available to aliens from those countries that have trade treaties with the U.S., such as South Korea, Japan, Thailand, Philippines.  In general, this kind of status is valid for two years. Upon expiration, it can be extended two years each time.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.