A non-immigrant visa is issued to an applicant when he or she has demonstrated that he/she qualifies for the visa. Depending on the type of visa issued (student, visitor, H1-B worker, other temporary/seasonal workers etc.), there are some options to adjust non-immigrant status to immigrant status (Permanent Resident). Many visa-holders have experienced a change or circumstances over the years, since the original visa was issued.

 Most non-immigrant visas cannot be directly adjusted due to the statements the applicant makes when applying for the visa. When most non-immigrants apply for a non-immigrant visa to the U.S., one of the most important declarations (and supporting documents submitted) is that they swear they have non-immigrant intent. A U.S. immigration consulate official is required to assume that every applicant has immigrant intent. That is, they intend to immigrant or remain in the U.S. permanently to live and work regardless of whether or not they are applying for a non-immigrant visa. The sworn statement to the contrary puts a non-immigrant in the position to be awarded a non-immigrant visa.

Proving non-immigrant intent is a huge burden that must be met. The applicant must demonstrate that they have no plans to remain in the U.S. past their authorized stay and that they have ties to their home country that will require their return after their visa has expired (this includes family, money, property etc.)

Once the burden is met, immigration officials do not make it easy to retract the intention. This proves to be difficult to adjust the status of a non-immigrant to immigrant. However, there ARE options available based on each individual situation. It is best to contact an immigration attorney to determine your options. U.S. immigration law does recognize that circumstances change, in good faith and over time.

Not all non-immigrant visas require the applicant to show non-immigrant intent. These cases allow for what the USCIS calls “dual intent”. Dual intent is where a non-immigrant applies for the non-immigrant visa and while in the U.S. under that visa, is allowed to apply for permanent residency if they qualify by any other means. For example, a non-immigrant with an H1-B can apply for different employment visas while under their H1-B and have an employer petition for an immigrant visa.

This process is not black and white and takes a lot of time. The process is full of pitfalls for the unwary visa holder. Investing in professional guidance can enhance your ability to achieve your goals without the expense of returning home and interrupting your employment obligations. This can be especially useful when families have relocated and started the process of establishing new roots as ex-patriots of another country. It is important to know and understand what status you are applying for and how it will affect your future. Discussing your situation and future plans with an immigration attorney will help you determine what options will help you with your immediate and future plans.