IMMIGRANT AND NON- IMMIGRANT VISAS IN THE UNITED STATES

As a general rule, everyone who enters the Unites States is considered an immigrant until they prove that their objective is not to reside permanently in the country and until they have officially been approved to enter the country under the subcategory of their issued visa by U.S. Customs and Border Protection (usually these visas fall under the category of non-immigrant visas).

Now we can talk about the two types of visa applications or the different degrees of migratory status which include several subcategories: the non-immigrant and the immigrant visa (the immigrant visa is the permanent legal residence visa or Green Card).

In dealing with the status of non-immigrant, once your application is approved by the U.S. Citizen and Immigration Services or USCIS, if you are currently residing outside of the United States then you must obtain a visa or permit issued by the Department of State (DOS) in order to enter the country. This typically is a visa sticker or stamp placed directly into the passport that authorizes you to enter the country. There are citizens of certain countries that are exempt from this last step, such as Spain.

If you are already on USA territory and your situation in the country changes from what it originally was upon your initial entry, you must notify the USCIS directly or through your employer if you have a visa based on employment. If this applies to you, then you must resubmit the I-129 form as it deals with a migratory status change or initial status renewal.

Once the application is approved by the USCIS, you can then apply for permanent legal residence if you are already in the U.S. If you are residing outside of the U.S. then you may apply for one of the other migratory status subcategories.

Is it possible to change your status from non-immigrant to immigrant?

Although most subcategories under the non-immigrant status do not allow you to switch to immigrant status (permanent legal residence or green card), some do allow it only if find yourself still in a regular situation of stay. This is known as Dual Intent- allowing individuals to switch from temporary visas status to permanent or green card.

This switch will be permitted when dealing with the following individuals:

• Highly qualified workers of recognized prestige, his spouse and his unmarried children under the age of 21.
• U.S. citizen´s registered partners, spouses or unmarried children under the age of 21.
• Permanent legal resident´s registered partners, spouses or unmarried children under the age of 21.
• Workers with extraordinary abilities, their spouses and unmarried children under the age of 21.
• Athletes and artists of recognized prestige, their spouses and unmarried children under the age of 21.
• Big investors (investments of 500,000- 1 million dollars) and their spouse and unmarried children under the age of 21.

It is very important to understand the differences between all available options and decide which one best fits your situation. Some visas are granted on a limited yearly basis which could affect the amount of time you have to wait before you receive it. All procedures are handled differently according to the subcategory under which the visa falls. Due to this, it is strongly advisable that you meet with an immigration lawyer before carrying out this migratory procedure.

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