An important question for many people applying for U.S. lawful residence while already living or staying in the U.S. is: Will you need to leave the United States while you wait for your application to be processed?
The short answer is: It depends. Some people can stay in the U.S. for the entire period of applying for a U.S. green card (lawful permanent residence). Others must leave the U.S., either while they wait for a visa to become available (which can take years) or in order to attend their immigrant visa interview, which is the last major step in the immigration process.
We'll address both these situations below.
Note: If you're not already living in the U.S., then this article doesn't apply to you. The immigration authorities prefer that you wait outside the U.S. for the entire period of applying for the green card, and attend an interview at a U.S. consulate in your home country, where you will receive an immigrant visa. With that visa, you can enter the U.S. and become a lawful permanent resident, or green card holder.
Is an immigrant visa or green card immediately available to you?
It is if, for example, you are the immediate relative of a U.S. citizen petitioner (you are the citizen's spouse, parent, or unmarried child under 21); or if you are applying based on having received asylum or refugee status in the U.S; or if you are applying through an 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 U.S. is simply a question of whether you're allowed to apply for your green card without leaving the U.S., through the procedure known as "adjustment of status" rather than using consular processing, which we'll discuss in the next section, below.
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, and you will likely have to spend time on a waiting list.
Your 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 U.S. 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 U.S. 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.
If you don't leave, and you spend time in the U.S. unlawfully, you put your very right to receive the green card at risk, and could be found inadmissible when applying for U.S. residence (at least for a period of years).
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). That doesn't necessarily mean you will be allowed to complete the application process in the U.S., by doing what's called "adjusting status." In order to be eligible for adjustment of status:
If you aren’t eligible to adjust because of an illegal entry or other visa violation, there's a tiny chance you can still adjust 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:
If you are, in fact, eligible to adjust status, then you will have a right to remain in the U.S. just as soon as your application has been submitted to USCIS and it has acknowledged receipt.
Assuming you applied for a work permit (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 and planning to apply for adjustment of status however, try to get your application in quickly. Otherwise, if you are arrested, you will have to present your application in immigration court.
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.
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.