Many of our clients and readers have asked this question. Generally, a foreign national here in the U.S. on a specific visa cannot apply for a Green Card or change their visa status after their I-94 expires. This is because only individuals who are considered to be in lawful immigration status may apply to change their immigration status. However, not everyone whose I-94 has expired is considered in violation of their status. This post seeks to clarify how to apply for a Green Card and change or extend your status and what your I-94 signifies.
What is the Green Card process?
The Green Card (or Adjustment of Status) process is for applicants who plan to live and work permanently in the U.S. The process starts with a U.S. Petitioner filing an immigrant petition (I-130/I-140) and petition to register for permanent residence or adjust status (I-485). on behalf of a Foreign Beneficiary. In the employment-based context, the company is the Petitioner and the foreign employee is the Beneficiary. In family petitions, the U.S. Citizen (or Legal Permanent Resident) relative is the Petitioner and the foreign relative is the Beneficiary. The Beneficiary must hold valid visa status and comply with the requirements of the status. Exemptions apply to immediate relatives, domestic violence victims and other special immigrants. Once the application is approved, then the Beneficiary gets either a conditional or a permanent Green Card.
What is the Change or Extension of Status process?
The Change or Extension of Status process applies to foreign nationals on nonimmigrant visas, which are for those who intend to stay in the U.S. temporarily with no intent to permanently reside in the country. The applicant files form I-539 with the USCIS with the requisite documentation. Once approved, the applicant will receive an updated I-94 with the new expiration date or updated visa category, if applicable. The applicant may leave the country, but would need a visa from a U.S. Consulate to return, because the I-94 issued by USCIS is not sufficient for entry.
What is the I-94?
The I-94 is the foreign national's Record of Lawful Admission to the U.S. issued upon entry to the U.S. This document contains information regarding the person's most recent entry, including passport & visa information, Date of Entry, and the Admit Until Date (expiration date).
What is the Period of Authorized Stay?
A person that timely filed for a change or adjustment of status and stays in the U.S. beyond the expiration date while their application is pending is considered to be in a period of authorized stay. This period continues until USCIS issues a decision on the pending application. If the application or petition is approved with an adjustment, extension or change of status, the decision has a retroactive effect, meaning that the period without status is cured.
If you are in the United States and are considering an adjustment, change or extension of your status, we recommend that you speak with an experienced immigration attorney. A denial of your application can have wide-ranging effects on your immigration status.
We've successfully assisted many foreign nationals in their adjustment, change and extensions of status applications. Please contact us. We are here to help. Follow us on Instagram, Twitter, Facebook, LinkedIn or Tumblr for up-to-date immigration news.
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