Yes, with a few exceptions. Almost all nonimmigrant statuses are for a limited period of time and require "nonimmigrant intent", which means that DoS and CBP have discretion to stop granting you visas/status if they can see that you are trying to live in the US permanently. Some exceptions include:
- O-1 status is exempt from the requirement to maintain a residence abroad [1], and can therefore be renewed indefinitely in 3-year increments. However, you must continue to work in the area of extraordinary ability for as long as you want to remain in O-1 status.
- American Indians born in Canada may live in the US permanently and are immune to deportation [2][3].
- Most citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau may live and work in the US indefinitely under the terms of the Compact of Free Association [4][5].
- There are a few paths to US citizenship that bypass the usual requirement of first becoming a permanent resident. The most common one involves applying for naturalization during a temporary visit to the US when you have a US citizen parent (possibly an adoptive parent) who resides with you outside the US [61]. The others are more obscure.
Yes. Lawful permanent resident (LPR) status in the United States confers both rights and responsibilities. Here are some reasons why you might not want to become an LPR:
- Permanent residents, if male and between the ages of 18 and 26, are required to register for the Selective Service [6].
- An LPR is subject to taxation as a resident alien even if they reside outside the US for most of the year [7].
- You must actually reside in the US in order to maintain the rights associated with LPR status. If you abandon your residence in the US, you will need to file Form I-407 to renounce that status before you can be readmitted to the US as a nonimmigrant. If you have been an LPR for 8 or more years at the time when you give up that status, you may be subject to an expatriation tax [8].
You can qualify to become an LPR as:
- a family-based immigrant [12][13],
- an employment-based immigrant [14],
- a diversity immigrant [15],
- an asylee or refugee [16], or
- a spouse or child of someone who falls into one of the above categories.
There are a few other, less common routes to LPR status that have been omitted from the above list. Since the Immigration Act of 1990, there is no general category you can "wait in line" for. You need to qualify under one of the specific provisions of the law. [17]
In family-based and employment-based cases, you must have a petition filed by your sponsoring family member or sponsoring employer (some employment-based categories allow self-petition) and approved by USCIS in order to establish your eligibility [18][19]. For all employment-based categories and most family-based categories, there is an annual quota, so following the approval of the petition, you may need to wait months or years before it becomes your turn to apply for LPR status.
When the time finally comes for you to apply for LPR status, you can obtain that status either by applying for an immigrant visa and using it enter the US [9] or by applying for adjustment of status while already in the US [10]. For employment-based applicants, the adjustment of status route is more common, since the applicant will usually already be working for the sponsoring employer in a nonimmigrant status at the time when they become eligible to apply for LPR status.
Although adjustment of status applicants don't receive immigrant visas, it is customary to refer to both types of immigrants as immigrant visa applicants. For example, a petition such as an I-130 (family-based) or I-140 (employment-based) is referred to as an "immigrant visa petition" even though, once approved, it can be used for either an immigrant visa application or adjustment of status. Similarly, limitations on numbers of immigrant visas that may be issued per year also apply to adjustment of status applicants [27].
You become an LPR, and are entitled to the associated rights and privileges, as soon as you are admitted under an immigrant visa or your adjustment of status is approved. However, it takes a few months to produce the plastic green card bearing your photo and other information, which will be mailed to you when it is ready.
See the EB FAQ.
This is a rule that, out of the total quota of employment-based and family-based visas available per fiscal year, each country's natives are initially limited to receiving up to 7% of those visas [22]. (If this rule would result in some visas going unused, then the remaining visas can be issued in excess of the 7% limit.) The practical details of how the State Department enforces this limit are complex and not fully understood, but the overall result is long waiting times for applicants from certain countries, if they are applying for an immigrant classification that many other people from their country are also applying for. For example, family-based waiting times are very for natives of Mexico, and employment-based waiting times are very long for natives of India.
Why are the per-country quotas on immigration based on country of birth rather than country of citizenship?
It is a common practice for countries to treat foreign nationals differently depending on the specific foreign country of nationality: for example, almost all countries maintain a list of other countries whose citizens they grant visa-free access to. (The US Visa Waiver Program is no exception: citizens of most European countries, and a few other rich countries such as Australia and Japan, may travel to the US for up to 90 days for business or pleasure without obtaining a visa.) Some countries also have a simple path to permanent residence for citizens of other specified countries: the EU for other EU countries, Australia and New Zealand for each other, and so on. However, discrimination based on country of birth is a quirk of the American immigration system that exists partially for historical reasons and partially for political reasons.
Historically, country of birth quotas were originally introduced as part of the Immigration Act of 1924, which is infamous for including the National Origins Formula
. The purpose of the National Origins Formula was to attempt to revert the racial demographic profile of the United States to be more similar to what it had been a few decades prior, when most immigrants were from northern and western Europe. As such, the National Origins Formula was different from the current quota system in one important way: it had a different quota for each country, and immigration from most of Asia was completely banned. In such times, nationality was a fuzzier concept than it is today (in part due to colonialism) and many people around the world had no nationality; it seems likely that Congress decided that charging immigrants to the quota of their country of birth would be the simplest and cleanest way to accomplish their racial demographic shaping objectives.
The National Origins Formula was repealed by the Immigration and Nationality Act of 1965, which set the current 7% quota for immigrants born in any one foreign country (though total quotas were later adjusted by the Immigration Act of 1990). It's not clear whether there was any debate at the time about whether the quota system should have been changed to be based on country of nationality rather than country of birth.
In the modern era, debates about the per-country quota tend to be centered around whether the rule should be abolished, at least for employment-based immigrants (some proposals also raise the per-country quota for family-based immigrants from 7% to 15%). Proponents of maintaining the per-country quotas insist that they are necessary in order to preserve diversity and avoid the formation of ethnic enclaves within the US. There is no significant advocacy for changing the formula to be based on country of citizenship, since opponents of the per-country quota contend that the US should simply accept a number of the most qualified immigrants from all over the world instead of limiting the number that can come from specific countries.
As explained above, becoming a citizen of another country doesn't affect which country you're charged to for the purposes of the 7% per-country limitation. However, under some conditions, it is possible to be charged to a different country. If your country of birth is different from that of both of your parents, and neither parent had a residence in your country of birth at the time of your birth, you may be able to be charged to one of your parents' countries of birth instead. Also, you can be "cross-charged" to your spouse's country of birth if it is different from yours [20]. The Foreign Affairs Manual explains that, for example, an EB-2 applicant born in India and has a spouse born in France could elect to be charged to France, thus having their priority date become current sooner [21]. (However, if your plan is to find someone to marry specifically to speed up your green card process, why not just marry an American?)
Once you are granted LPR status, you must observe many rules in order to avoid losing that status, some of which are listed here:
- Maintain your domicile in the US by living in the US and only making temporary trips abroad. This is a complex topic for which many other resources are available online, so we won't have much more to say about this here.
- Inform DHS of any change of address in the United States by filing Form AR-11 with USCIS.
- This is required by law and failing to do so could theoretically, by itself, serve as a ground for deportation [28]. While I'm not aware that anyone has ever been deported for this reason alone, I do not recommend handing the current administration an excuse to deport you on a silver platter.
- More practically, if USCIS or ICE needs to send you any written communication, they will send it to your address on file. Failure to receive such communication, such as a Notice To Appear, could have adverse consequences for your immigration status.
- Keep in mind that there are various criminal convictions that can serve as grounds for inadmissibility and/or deportation [29][30]. If you consider deportation to be a more serious punishment than incarceration, you may want to be more careful than you would otherwise be when doing anything that could possibly lead to a criminal conviction.
- Do not attempt to vote. While this may seem obvious, it's easy to accidentally sign a petition for a ballot proposition (particularly in California). You should keep in mind that this is not allowed [31] until you become a US citizen and register to vote.
- Never misrepresent yourself as a US citizen [32]. You are already entitled to most of the rights that US citizens enjoy, so there is usually no reason to do so. For example, LPRs can engage in employment, invest, obtain mortgages, and purchase firearms on the same terms as US citizens.
- Never enter the United States other than at a designated port of entry [33].
- When entering the United States, have in your possession your valid unexpired green card or temporary I-551, re-entry permit, or returning resident visa [34].
- If your LPR status was granted on a conditional basis (indicated by a green card that expires 2 years after the date on which you become an LPR), you must apply to remove conditions during the 90-day period preceding said expiration [37][38][39]. Failure to do so will result in the expiration of your status, upon which you may be deported.
- If you are issued a Notice To Appear, you must attend (either personally or in some other prescribed manner) even if you are certain that you are not removable. Failure to attend can result in being barred from the US for 5 years [41]. If you don't attend, and the removal proceedings conclude that you are removable, then you will be ordered removed in absentia, which may result in being barred from the US for 10 years [40][42].
If the above rules sound burdensome to you, consider applying for naturalization once you become eligible. Naturalized US citizens are not subject to any of these restrictions.
Failure to carry your green card or other evidence of your LPR status while in the United States is not a deportable offense, but is a misdemeanor [35]. While few people are convicted for failing to carry their green card, it's quite possible that ICE agents demand to see your green card, refuse to believe you when you say you left it at home, and place you under detention, releasing you only once they are satisfied that you are an LPR (and there's no telling how long that will take). Why expose yourself to that risk?
If you have conditional status, your green card will expire at the same time as your status---namely, 2 years after you become an LPR. You must apply to have the conditions removed using the appropriate form. Upon approval of this application, you will receive a green card valid for 10 years. Failure to do so can result in removal from the United States [37].
If your 10-year green card is expiring, you are required to apply for a new card [36] using Form I-90. The expiration of a 10-year green card does not result in the loss of LPR status (see e.g., here), but an expired green card generally cannot be used as proof of LPR status, so failure to renew your expired card will make life more difficult for you.
The voluntary loss of LPR status (i.e., not as a result of being deported or removed from the United States) is not among the grounds of inadmissibility set out in INA 212(a) (8 USC §1182(a)), and therefore does not, in general, act as a bar to future admission to the US as a nonimmigrant or as an immigrant, provided that you meet all the necessary qualifications, just as is required of any other alien who was not previously an LPR.
There is a single exception: if you, as an LPR, leave the US in order to avoid the draft, you become permanently ineligible to immigrate to the US [23][24]. It is possible to return to the US temporarily (i.e., as a nonimmigrant), but a waiver is required [25]. Yikes.
If you wish to return to the US as an immigrant in the future after giving up LPR status, you will need to go through the whole process all over again. You cannot reuse the priority date that you used for your previous immigrant visa application when you are applying for your new immigrant visa [26]. You might wonder if there's a loophole: if you had two I-140s approved, and you used the priority date of the earlier one for your immigrant visa application, becoming an LPR, could you later use the priority date of the later one for a subsequent immigrant visa application? The answer doesn't seem to be written down anywhere, and no immigration lawyer I spoke to had ever heard of such an unusual case. All I can say is that it would be unwise to expect this to be allowed. You should simply assume that you will have to start from scratch, with none of your old priority dates being available.
This is a complicated topic. The general principles are as follows:
- Terminology: the alien who directly qualifies for an immigrant visa or adjustment of status is known as the principal applicant. Some immigration categories allow derivative applicants: that is, additional individuals, namely the spouse and children of the principal, are eligible to immigrate as well by virtue of their relationship to the principal. Some categories do not allow derivatives. For example, if Form I-140 was filed on your behalf by your employer, then you are a principal applicant and your spouse and children can be included as derivatives; they derive their eligibility from you, rather than through their own employment.
- In the Immigration and Nationality Act, "child" means unmarried child under the age of 21, including stepchildren and adopted children under some circumstances [44]. A child who is married or over the age of 21 cannot be included as a derivative. Instead, you may eventually be able to sponsor them as a principal in a family-based immigration category [13], at which time they can bring their own derivatives. However, the waiting time for this is often years or decades.
- Derivative applicants outside the US may either accompany the principal (enter the US on immigrant visas at the same time as the principal) or follow to join (enter the US on immigrant visas after the principal has immigrated) [43][45]. Derivative applicants in the US may file for adjustment of status either concurrently with the principal or at a later time [46].
- Your spouse can only qualify as a derivative if you married them before you entered the US on an immigrant visa [45] or before your adjustment of status was approved [46]. A similar rule exists for children, but there are exceptions, for which see [45]. If you get married after you become an LPR, your spouse cannot qualify as a derivative, and must instead be sponsored as a principal. Since, at the time of writing, there is roughly a 2-year backlog for spouses of LPRs [47], you are advised to consider getting married before you acquire LPR status.
- A child born outside the US to a mother who is already an LPR does not need to receive an immigrant visa as a derivative, but may instead be admitted to the US as an immigrant when accompanying the mother on her first return to the US after the birth of the child [48]. (A child born in the US, on the other hand, is already a citizen.)
In this answer, we will only cover the previously mentioned routes to LPR status. Eligibility for derivative classification, as a spouse or child of the principal applicant, is subject to the caveats discussed above.
- A principal classified as the immediate relative of a US citizen (spouse, unmarried child under 21, or parent) cannot have derivative benficiaries; their spouses and children must be separately sponsored as principals [52]. (We defer further discussion of this topic to a possible future section of the FAQ dealing specifically with family-based immigration.)
- Employment-based immigrants, that is, immigrants with classification EB-1, EB-2, EB-3, EB-4, and EB-5, can have derivative beneficiaries [43].
- Family-based preference immigrants (F1, F2A, F2B, F3, or F4) can have derivative beneficiaries [43]. However, F1 and F2B immigrants cannot have derivative spouses since those classifications require the principal to be unmarried.
- Diversity immigrants can have derivative beneficiaries [43].
- Asylees and refugees can have derivative beneficiaries [49][50]. The derivatives are accorded the same status as the principals, and therefore must apply for LPR status after one year, just as the principal does [51].
Denial of Form I-485 results in your status not being adjusted; for example, if you were in H-1B status at the time when Form I-485 was denied, then you continue in H-1B status. However, if your nonimmigrant status has expired by the time that Form I-485 is denied, then you are in trouble, since USCIS has decided to start referring to removal proceedings all denied I-485 applicants who are unlawfully present upon denial [60]. It is therefore advisable to, whenever possible, keep renewing your nonimmigrant status while waiting for your I-485 to be adjudicated. (Unfortunately, there are some nonimmigrant classifications, such as K-1 and K-2, for which this isn't possible.)
There are many ways to get an EAD, but only two will be discussed in this section of the FAQ.
Aliens applying for adjustment of status can apply for an EAD [55]. USCIS allows Form I-765, Application for Employment Authorization, to be filed either concurrently with Form I-485, or while Form I-485 is pending [56]. This should be indicated as category (C)(9) on form I-765 [56]. The only requirement to apply for a (C)(9) EAD is that you have filed Form I-485 and Form I-485 is still pending. In nearly all cases, form I-765 is approved before form I-485, which provides the alien with temporary work authorization while they wait for their form I-485 to be approved. Those who are interested in obtaining an EAD would be well advised to apply sooner rather than later, because it can take several months for the EAD to be issued.
As an exception, asylees and refugees qualify for employment authorization "incident to status" [59], and even though they may have a pending I-485, they should apply for employment authorization on the basis of their status, not on the basis of the pending I-485 [56].
USCIS may revoke an EAD when it determines that a change in circumstances results in you no longer being eligible for employment authorization [57]. Thus, if you received an EAD due to a pending I-485 and the I-485 is denied, USCIS has grounds to revoke the EAD upon written notice, which gives you 15 days to respond (for example, by filing a motion to reopen the adjustment case). Some immigration lawyers claim that regardless of whether or not USCIS notifies you that they are revoking your EAD, the denial of Form I-485 results in automatic revocation of the EAD. Others, however, recognize that federal regulations explicitly require written notice of revocation (see, e.g., Silzer, 2009).
Note, however, that if you are placed in removal proceedings upon the denial of the adjustment of status application (see above), then this has a side effect of automatically revoking your EAD; USCIS is not required to send notice of revocation in such cases [58].
No. The proclamation in question [62] applies to the issuance of immigrant visas at consular posts. It does not prevent USCIS from issuing green cards to individuals who have applied for adjustment of status from within the US. There had been some speculation that I-485 processing had been paused, but the author of that article later posted an update clarifying that the supposed pause on I-485 adjudication was related to prioritizing limited USCIS resources and was not related to the immigrant visa ban. I-485s for all categories continued to be processed despite the proclamation of April 22, 2020.
The immigrant visa ban was rescinded on February 24, 2021.
[1] INA 101(a)(15)(O)(i) (8 USC §1101(a)(15)(O)(i))
[2] INA 289 (8 USC §1359)
[3] Matter of Yellowquil, 16 I. & N. Dec. 576 (BIA 1978) (https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2664.pdf)
[4] 48 USC §1901
[5] 48 USC §1931
[6] 50 USC §3802(a)
[7] This is the so-called "green card test", codified at 26 USC §7701(b)(1)(A)(i)
[8] 26 USC §877(e)(2)
[9] 8 CFR §211.1(a)
[10] INA 245(a) (8 USC §1255(a))
[11] 8 CFR §245.1(a)
[12] INA 201(b) (8 USC §1151(b))
[13] INA 203(a) (8 USC §1153(a))
[14] INA 203(b) (8 USC §1153(b))
[15] INA 203(c) (8 USC §1153(c))
[16] INA 207–209 (8 USC §1157–1159)
[17] INA 201(a) (8 USC §1151(a))
[18] INA 204(a) (8 USC §1154(a))
[19] 8 CFR §204.1
[20] INA 202(b) (8 USC §1152(b))
[21] 9 FAM 503.2-4(A)(h)
[22] INA 202(a)(2) (8 USC §1152(a)(2))
[23] INA 212(a)(8)(B)(8 USC §1182(a)(8)(B))
[24] 9 FAM 305.2-10(B)
[25] 9 FAM 305.3-10(B)
[26] 9 FAM 503.3-3(A)
[27] INA 245(a)(3) (8 USC §1255(a)(3))
[28] INA 237(a)(3)(A) (8 USC §1227(a)(3)(A))
[29] INA 237(a)(2) (8 USC §1227(a)(2))
[30] INA 212(a)(2) (8 USC §1182(a)(2))
[31] INA 237(a)(6) (8 USC §1227(a)(6))
[32] INA 237(a)(3)(D)(i) (8 USC §1227(a)(3)(D)(i))
[33] INA 212(a)(6)(A)(i) (8 USC §1182(a)(6)(A)(i))
[34] INA 212(a)(7)(A)(i)(I) (8 USC §1182(a)(7)(A)(i)(I))
[35] INA 264(e) (8 USC §1304(e))
[36] 8 CFR §264.5(b)(2)
[37] INA 237(a)(1)(D) (8 USC §1227(a)(1)(D))
[38] 8 USC §1186a
[39] 8 USC §1186b
[40] 8 USC §1229a(b)(5)
[41] INA 212(a)(6)(B) (8 USC §1182(a)(6)(B))
[42] INA 212(a)(9)(A) (8 USC §1182(a)(9)(A))
[43] INA 203(d) (8 USC §1153(d))
[44] INA 101(b)(1) (8 USC §1101(b)(1))
[45] 9 FAM 502.1-1(C)(2)(b)
[46] Instructions for Form I-485
[47] January 2019 visa bulletin
[48] 8 CFR §211.1(b)(1)
[49] INA 207(c)(2)(A) (8 USC §1157(c)(2)(A))
[50] INA 208(b)(3)(A) (8 USC §1158(b)(3)(A))
[51] INA 209(b)(3) (8 USC §1159(b)(3))
[52] 8 CFR §204.2(a)(4)
[53] Ibid., (d)(4)
[54] Ibid., (f)(4)
[55] 8 CFR §274a.12(c)(9)
[56] Instructions for Form I-765
[57] 8 CFR §274a.14(b)
[58] Ibid., (a)
[59] 8 CFR §274a.12(a)(3–5)
[60] Notice to Appear Policy Memorandum
[61] INA 322 (8 USC §1433)
[62] Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak
[63] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/