Many of my YouTube subscribers have asked me if it is a good idea to come to the United States on a visitor visa and submit an EB2 NIW I-140 application, to then adjust their status from the B-1/B-2 visa to a green card. The answer to this question may vary depending on the specific historical moment. As of late 2023, it is not a great idea to pursue this path as the risk may outweight the benefits.
What is a visitor visa?
Let’s start from the beginning. A visitor visa is a nonimmigrant visa without dual intent . This means the holder has to show their intention to return to their country of origin after a temporary stay. That stay may be due to business (B-1) or Tourism (B-2). Often times, the US government through State Department, will grant a combination of B-1 and B-2 visas, commonly referred to as visitor B1/B2 visa.
What can you do on a B-1 visa?
According to the Department of State website, these are the activities that are allowed under the B1 visa:
- Consult with business associates
- Attend scientific, educational, professional, or business conventions or conferences
- Settle an estate
- Negotiate a contract
What can you do on a B-2 visa?
Similarly, these are the things you are allowed to do in the US while on a B2 visa, according to State:
- Visit with friends and relatives
- Medical treatment
- Participation in social events
- Participation by amateurs in musica, sports, or similar events (have to be without pay!)
- Enrollment in short recreational course of study, not towards a degree (example: two day cooking class while on vacation).
What things are prohibited on a B1/B2 visa?
Mostly anything not listed above, including:
- Paid performances or any professional performance before a paying audience
- Arrival as crewmember on a ship or aircraft
- Work as foreign press
- Permanent residence in the USA
Can you do adjustment of status from a B-1 or B-2 visa?
Technically, yes (but wait for the full answer). You can adjust your status from any nonimmigrant visa (with or without dual intent).
It is important to avoid filing adjustment of status, or form I-485, within 90 days of entering the country. This comes from an older 90-day rule that is no longer in effect but it is still used as reference to avoid being accused of entering the country with the intention of staying.
Below is a screenshot from the Department of State website where they explain how visitor visa holders may apply for change of status:
But, it is a good idea to seek an EB2 NIW green card from visitor visas right now?
In short, my opinion is summarized with a resounding NO. The reason is B1/B2 visas have a maximum period of stay, which is dictated by the Embassy or Consulate that granted the visa. In general, this period does not go beyond six months (it’s not a coincidence that six months is the typical definition for permanent residence in many countries).
The current total wait times for EB-2 NIW green cards is much longer than six months. Currently, as of December 2023, the visa bulletin dictates a wait time of more than one year for the second step of the process (adjustment of status). In order to apply for an I-485 you must have a valid legal status in the US. If your visitor visa period of stay was completed, you no longer qualify for an adjustment of status
But I can request an extension for my B visa!
Yes, you may apply for an extension of your visitor visa while you are in the US, using form I-539. However, you will need to provide a written explanation that proves why you need such extension and provide evidence to back it up. Even if you are granted such an exceptional measure, you may still risk running out of status before the Visa Bulletin allows you to file your I-485.
In the current scenario, with a relatively long wait time dictated by the Visa Bulletin, it seems too risky to travel to the USA under a visitor visa to file an I-140 for EB2 NIW green card with the objective of adjusting status. It is likely you will run out of legal status while waiting for your visa number to become available. In the past, this was a viable option and it may be again in the future if the visa bulletin backlogs clears.
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