Provisional Waiver

The terms “green card” and “visa” can each have multiple meanings. Sometimes, their meanings are very different, but other times may overlap.

Do I Need a Visa or a Green Card?

While both U.S. visas and green cards permit you to stay for extended periods of time to visit, live, and possibly work in the United States -either temporarily, conditionally, or permanently- they have very different purposes and it is important to understand the differences before applying for either.

Video — What is the difference between a visa and a Green Card?

What is a Visa?

In the narrowest sense of the term, a visa gives you permission to seek entry to the United States by presenting yourself at the border or a port of entry. Although, it is important to note that the U.S. Customs and Border Protection officer on duty at the border or airport will ultimately decide whether you are allowed to enter or not. However, if you have the visa, it is typically a good indicator that you will be allowed to enter the country. Physically, a visa will typically appear as a stamp on your passport. So, when you are instructed to appear at the U.S. consulate to get your visa, you should expect to receive a stamp or similar document that gives you permission to enter the United States.

In a broader sense, the word visa can also be used in situations where immigrants don’t need an entry visa because they are already residing in the United States. In this scenario, the word is referring to the allocation of a visa number to an immigrant by the U.S. Department of State. When you hear the terms “visa availability” or “visa eligibility,” it is not the physical visa you acquire overseas, but rather the theoretical visa the State Department will assign to you.

A foreign national wishing to enter the U.S. typically must first obtain a visa. There are two different types of visas; nonimmigrant and immigrant. Nonimmigrant visas give aliens permission to temporarily stay in the United States for a definite period of time and for a specific purpose (i.e. working or studying), whereas immigrant visas are given to aliens in search of permanent residence in the United States.

Nonimmigrant Visas

A nonimmigrant visa is issued by overseas U.S. Embassies and Consulates to applicants wishing to travel to the United States on a temporary basis. Examples of nonimmigrant visas include tourist visas, transit visas, business visas, and student visas. While valid, one of these nonimmigrant visas will entitle an individual to request admission to the U.S. at an approved port of entry. At the port of entry, the United States Immigrationand Naturalization Service (INS) will determine which individuals are permitted to enter and for how long they may stay.
Among this type of visa are the L-1 Intracompany Transfer, F-1 and M-1 Student Visas, P-1 Athletes and Entertainers, and the J-1 Exchange Visa. These visas are granted to certain nonimmigrants seeking temporary residence in the United States while they carry out their approved task for the duration of their visa.

Immigrant Visas

Aliens will choose one of two paths to request admission to the United States depending on where they are living when they apply.

  1. Aliens who are living overseas must visit a U.S. Consulate to apply for an immigrant visa. When they are given a visa, they are allowed to enter the United States and become legal immigrants once they pass through the port of entry.
  2. Aliens who are already residing in the U.S., including some undocumented immigrants, refugees, temporary workers, and foreign students must have their status changed to legal permanent residence by filing an adjustment of status with the USCIS. An alien who has been granted temporary residence must file Form I-485, Application to Adjust Status, to become a permanent resident. When an alien applies for adjustment of status, he or she may also apply for a work permit. When you become a legal immigrant, you are automatically allowed to work and should receive your alien registration card, or green card once you become a lawful permanent resident.

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What is a Green Card?

The term “green card” is slang and can be used in place of “lawful permanent resident”. In the most limited sense of the term, it is used to refer to the plastic photo identification card you get when you become a lawful resident of the United States.

Sometimes, the term green card has broader meanings, as well. It can be used to indicate lawful permanent residence or lawful conditional residence. The term “green card application” can refer to any one of the application processes- consular processing or adjustment of status- that can lead to acquiring residence in the United States.

It is a common misconception that green cards can be used as frequent travel passes, allowing unlimited trips into and out of the U.S. without the need to reapply for visas. Confusion on this topic often results in overseas family members of U.S. citizens or U.S. residents applying for green cards with the expectation of being able to visit in the United States for frequent or impromptu visits. However, if you plan to maintain your primary residence in another country, the United States government could determine that you have abandoned your U.S. residence. As a result, they will cancel your green card when they realize what you are doing. You will then be required to re-apply. Similarly, if you are married to a United States citizen or resident and plan on traveling back and forth or living in your country of origin for much of your marriage in early stages, you may want to reconsider applying for your green card until you are ready to settle in the United States.

What is a Conditional Green Card?

If you received your green card through an investment you made into a U.S. business venture (EB-5 investor visa program) then you are a conditional permanent resident. Additionally, if you were granted permanent residence status through a marriage that was not yet 2 years old at the time you were granted permanent residence, you are a conditional permanent resident.

A conditional green card gives an immigrant lawful permanent residency status on a conditional basis. A conditional permanent resident will receive a green card that is valid for 2 years only- it cannot be renewed. If you want to remain a permanent resident after those 2 years, you will need to file a petition to have the conditions removed from your permanent residency status. The petition to remove conditions must be filed within the 90 days prior to your card’s expiration date. If those conditions are not removed, you will lose your status as a permanent resident.

How Do I Convert My Conditional Green Card to a Permanent Green Card?

If you are in possession of a conditional permanent resident card, and you wish to remain a lawful permanent resident when it expires, you may be wondering how to have those conditions removed. The method for doing so depends on what conditions have been placed on your permanent residency.

  • If you have a marriage-based conditional permanent residency card, you will need to file Form I-751, Petition to Remove the Conditions of Residence. To have the conditions on your residency removed, you and your spouse have to apply together. The application must be made within 90 days of the second anniversary of your time as a conditional resident. Your second anniversary can be determined by looking at the expiration date on your conditional green card. If you are late in removing your residency conditions, you risk losing your conditional resident status and have removal proceedings started against you.
  • If, however, you have a green card for entrepreneurs (EB-5), you will need to file Form I-829, Petition by Entrepreneur to remove Conditions to have the conditions removed from your permanent residency status. You must file this form within 90 days of the date that marks the second anniversary of the granting of your EB-5 investor’s conditional green card. If your petition is approved, USCIS will remove the conditions from your EB-5 status and you and your derivative family members can permanently live and work in the U.S.

Once the conditions are removed from your residency, you will be able to reside, work, and travel inside the U.S. with your green card for the rest of your life. To make sure that you and your loved ones are not separated and no one experiences any loss of privileges associated with their lawful permanent residency, be sure to have conditions removed on all family members’ green cards, if applicable.

How Do I Change My Immigration Status?

If a person was inspected and allowed into the United States and can meet all the necessary conditions for a green card (permanent residence) in any category, the Immigration and Nationality Act (INA) allows that person to change his or her immigration status while he or she is in the U.S. from that of nonimmigrant or parolee (temporary) to immigrant (permanent). The procedure for this change to permanent status is commonly referred to as “adjustment of status”.

There are two main ways to achieve permanent resident status through the INA.

  1. Adjustment of Status is the process used to gain permanent resident status (green card) by an eligible person who already lives in the United States without the need to return to their country of origin to complete visa processing.
  2. The alternate procedure is called consular processing. This process is for use by people outside the U.S., or by people who are in the U.S. but are otherwise not eligible to adjust status. Through consular processing, they can acquire a visa overseas and enter the U.S. as a permanent resident.

Adjustment of Status

You must first determine if you are eligible for adjustment of status by seeing if you meet the qualifications for specific immigrant categories. While most immigrants become eligible for permanent residence via a petition filed on your behalf by a relative or employer, there are other ways possible. You can become a permanent resident by receiving refugee or asylum status first, or by one of several other special provisions. So, how do you know if you are eligible for adjustment of status?

According to Section 245 of the INA, you are eligible if:

  • You already meet requirements for permanent residence through a relative who is a U.S. citizen or lawful permanent resident, a U.S. employer, or because you obtained asylum or refugee status at least one year ago, or
  • You have an approved visa petition, either Form I-130 or I-140, on file. If applicable, your priority date must also be current. Immigrants who fit into ‘preference categories’ that have yearly limits on visas have to wait until a visa is available before you continue with your green card application. Exceptions apply for some categories, such as ‘immediate relatives,’ who are allowed to file at the same time as the application for adjustment of status is made, or
  • You came to the U.S. on a K-1 fiancé visa and you have since married the person who petitioned for your visa, or
  • It has been 1 year since you were granted asylum or refugee status, or you entered the U.S. as a recognized refugee.

Additionally, you must be living in the U.S. and cannot have entered the United States as a foreign national crewman, ‘TWOV’- in transit without a visa, or via the Visa Waiver Program. However, some immigrants who entered the U.S. under the Visa Waiver Program may be eligible if you are the immediate family member of a U.S. citizen. An immigration attorney can help you determine if this applies to you. At the time of your adjustment of status application, your visa status must be valid, including not having stayed in the U.S. past the expiration date of your visa or not having worked without the permission of immigration authorities. Again, some exceptions apply- most notably to the immediate family members of U.S. citizens, including spouses, children, and parents. Provided these people entered the U.S. under valid visa status (i.e. not using that visa dishonestly for the explicit purpose of applying for a green card after arrival), they can use the ‘adjustment of status’ procedure to apply for permanent residence.

Special Eligibility Cases per Section 245(i)

Most applicants will need to fit into one of the previously mentioned categories to be eligible to file for adjustment of status. There are, however, exceptions- particularly for those people who have lived in the United States for many years and therefore are eligible to apply under some old laws. Under these laws- Section 245(i) and the Life Act- you can adjust your status if you meet most of the criteria mentioned above, but are otherwise ineligible to adjust your status because you entered the U.S. illegally or violated your status or visa conditions. If you pay a $1,000 penalty fee, you can apply to adjust your status if:

  • You were the beneficiary of a labor certificate application or an immigrant visa petition (I-130, I-140, I-360, or I-526) that was made on or prior to April 30, 2001, and
  • You can prove you were in the United States on December 21, 2000 (if that petition was filed between January 14, 1998 and April 30, 2001.

Consular Processing

The second method for applying for a permanent green card is known as consular processing. Someone who has an approved immigration petition and an immediately available immigrant visa number can apply at an overseas United States consulate for an immigrant visa for the purpose of coming to the U. S. and entering as a permanent resident. So, how do you know if you are eligible for consular processing?

Eligibility for Consular Processing

As stated before, the majority of immigrants are eligible for permanent residence because someone- either an employer or a family member- successfully petitioned on their behalf. Others obtain refugee or asylum status or use one of a number of other provisions to become lawful permanent residents. Someone can file an immigrant petition on your behalf in one of the following immigrant categories:

Family Green Card. A relative who is a U.S. citizen or a permanent resident can file Form I-130 on your behalf.

Employment Green Card. If you want to come to the United States to work, a U.S. based employer must petition for you using Form I-140. If you are an entrepreneur who plans to invest a substantial amount of money into a business endeavor in the U.S., you can petition for yourself using Form I-526.

Special Immigrant Green Card. Form I-360 allows certain immigrants, including Amerasians, widows and widowers to file for a green card themselves, or have someone petition on their behalf.

Humanitarian Programs Green Cards. An underlying petition is not necessary for most humanitarian programs, although additional requirements may have to be met before these individuals can adjust their status. While immigrant petitions are made with USCIS, sometimes it is possible to file an I-130 petition for an immediate family member (i.e. spouse, parent, or child of a U.S. citizen) at a United States consulate or embassy overseas. Examples of this scenario include:

  • When the U.S. citizen has been approved to be living continuously within the jurisdiction of the consulate or embassy for a minimum of the previous 6 months;
  • Military personnel;
  • Emergency situations;
  • When the well-being of the petitioner is involved;
  • When the interests of the United States at stake.

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