Must You Leave the U.S. to Wait For Your Green Card?

An important question for foreign nationals living in the United States and being petitioned for U.S. lawful residence (a green card) through U.S. family or an employer is: Will I need to leave the country as part of having my application successfully processed? The short answer is: It depends.

Some people can stay in the United States for the entire period of applying for a U.S. green card. Others must leave the United States, even after their U.S. sponsor receives approval of their initial visa petition, while they either:

• wait for a visa to become available (that is, for their "Priority Date" to become current; which can take years in some cases) or
• later, in order to attend their immigrant visa interview at a consulate in their country of residence or nationality, which is the last major step in the immigration process.

We'll address both these situations below.

Important caution: If you don't currently live in the United States, but you live in another country, the possible choice described in this article does NOT apply to you. U.S. immigration authorities prefer that people wait outside the U.S. for the entire period of applying for the green card, which includes ultimately attending an interview at a U.S. consulate in your home country. There, you will receive an immigrant visa with which to enter the U.S. and become a lawful permanent resident or green card holder.

If You Have an Existing Form of U.S. Immigration Status, You Be Able to Stay; Or Not

For people who are in the United States legally, perhaps on an F-1 student visa, a temporary work visa such as an H-1B, with Temporary Protected Status (TPS), or because they have a pending asylum case, having a separate visa petition filed on their behalf might work out great. Their existing status could, depending on how long it lasts, allow them to remain in the United States while their application for a green card wends its way through the system.

But that's not true in all cases. Conflicts can arise if one's existing immigration status doesn't allow for something called "dual intent." That is, if your nonimmigrant status is premised on the idea that you plan to return home at the end of your permitted U.S. stay, and if your visa doesn't allow you to simultaneously hold an intention of remaining in the United States per a separate application, then applying for a green card could actually put your existing visa at risk. This is a highly nuanced and visa-specific area, so speak to an immigration attorney for a full analysis.

Green Card Applicants Awaiting Current Priority Dates Might Need to Leave the U.S.

The next issue to consider is: Is an immigrant visa or green card immediately available to you? This depends on which visa category you are applying under and which country you are from.

People for Whom Visas Are Immediately Available

An immigrant visa is immediately available, with no waiting list, if you are either:

• the immediate relative of a U.S. citizen petitioner (the citizen's spouse, parent, or unmarried child under 21)
• applying based on having received asylum or refugee status in the U.S, or
• applying for residence certain other family members (in the so-called "preference" categories) or through a U.S. employer in a category where there are fewer applicants each year than the number of available visas.

In the above cases, the question of whether you need to leave the United States for further application processing is simply a question of whether you're allowed to apply for your green card through the procedure known as "adjustment of status" through a USCIS office rather than using consular processing abroad, which we'll discuss in the next section, below.

People for Whom Visas Are NOT Immediately Available

If, by contrast, you are applying for a green card through a family member or employer and your eligibility category makes you a "preference" beneficiary, then a visa is NOT immediately available to you (except in the rare event that that year's supply of visas is enough to meet the entire demand). The issue is that annual limits on visas in these categories usually create a waiting list.

Your U.S. petitioner (family member or employer) will have started the green card application process for you, by filing a petition on Form I-130 or I-140 with U.S. Citizenship and Immigration Services. Once that petition is approved, you will receive a "Priority Date," or a place on the waiting list. See How to Determine Your Priority Date for Immigration Purposes to better understand this process. The key thing to realize is that you don't receive any right to remain in the United States while you wait for your Priority Date to become current.

Unless you already have a visa or immigration status that allows you to remain in the United States legally, you must (as a preference beneficiary whose Priority Date isn't current) leave the U.S. and wait to apply for your green card through a U.S. consulate (consular processing).

If you don't leave, and you spend time in the United States unlawfully, you put your very right to receive the green card at risk, and could be found inadmissible at the final stages of applying for U.S. residence and thus barred from entry for a period of years.

Eligibility to Adjust Status Lets Some Applicants Avoid Consular Visa Interview

Let's say you are not only eligible for a U.S. green card, but you have a current Priority Date or are otherwise immediately eligible for a visa (and thus a green card). It could be very convenient if you could stay in the United States to finish up the process. However, the only people eligible to do so, that is to adjusting status, are those who:

• Are must currently be in the United States.
• Did not enter the U.S. as a foreign national crewman, in transit without a visa ("TWOV"), or under the Visa Waiver Program (VWP).
• If their eligibility is based on asylum or refugee status, have waited one year since either the asylum approval or their entry into the United States with refugee status.
• Did not enter the U.S. without inspection (illegally). (There's an exception for asylees.)
• Are (with some exceptions) in valid visa status (including that they not have violated the terms of the visa, for example by dropping out of school if here as an F-1 student visa, or by working without authorization), and have not have stayed past the expiration date of their permitted stay. One of the major exceptions is for immediate relatives of U.S. citizens, who are allowed to adjust status even if they have violated the terms of or overstayed a visa (but not if they entered the United States without inspection).

If you aren’t eligible to adjust because of an illegal entry or other visa violation, there's a tiny chance you can still do so if you fit within an old law called 245(i). It allows adjustment status, upon payment of a $1,000 penalty fee, to people who were:

• the beneficiary of an immigrant visa or labor certification petition (including I-140, I-130, I-360, or I-526) that was filed on or before April 30, 2001, or
• if the petition was filed between January 14, 1998 and April 30, 2001, and the applicant can also prove having been physically present in the U.S. on December 21, 2000.

If you are, in fact, eligible to adjust status, then you will have a right to remain in the United States just as soon as your application has been submitted to USCIS and it has acknowledged receipt. Assuming you apply for a work permit on Form I-765 (employment authorization document or EAD) along with your adjustment of status application, USCIS should send you one fairly soon, allowing you to work while you wait for the AOS interview where your application will be decided upon.

If you are out of status at the moment (you have no legal right to be in the U.S.) and you are planning to apply for adjustment of status, try to get your application in quickly. Otherwise, if you are arrested, you will have to present your application in immigration court and could be deported.

This is a difficult area of law, and figuring out whether you fit within one of the above exceptions is best done with the help of an attorney.

If You Need Professional Help

Look for a qualified and experienced immigration attorney who routinely handles adjustment of status cases and can explain to you the rules and your rights and assist you with the paperwork. Also see Is an Immigration Lawyer Worth the Cost?.