Client Question: My Nonimmigrant Visa Is About to Expire. If I File an NIW, Can I Stay in the United States?

A common question from prospective EB-2 National Interest Waiver applicants is:

"My nonimmigrant visa is about to expire. If I file an NIW petition, can I stay in the United States while it is pending?"

The answer depends on exactly what you file and your current immigration situation.

First, Is Your Visa Expiring or Is Your Status Expiring?

These are not necessarily the same thing.

The visa stamp in your passport generally allows you to seek admission to the United States. Once you are here, your authorized period of stay is generally controlled by your immigration status and your Form I-94, subject to special rules for certain categories.

If your actual nonimmigrant status is about to expire, the situation becomes much more important.

Filing an NIW I-140 Does Not Give You Status

An EB-2 NIW case begins with Form I-140, Immigrant Petition for Alien Workers.

Filing an I-140 does not, by itself, give you lawful immigration status, extend your existing nonimmigrant status, or authorize you to remain indefinitely in the United States.

This remains true even if USCIS approves the I-140.

An approved NIW petition is extremely valuable, but the I-140 is an immigrant petition. It is not itself an application for lawful permanent residence.

What If I Can File Form I-485?

This is where the answer may change.

If an immigrant visa is available and you are otherwise eligible to adjust status, you may be able to file Form I-485, Application to Register Permanent Residence or Adjust Status, either together with the NIW petition or later.

Generally, a person with a properly filed I-485 may remain in the United States during the period USCIS is considering the adjustment application.

That does not mean the pending I-485 gives you a new nonimmigrant status. There is an important legal distinction between maintaining nonimmigrant status and having a period of authorized stay based on a pending adjustment application.

Depending on the circumstances, an applicant may also seek employment authorization and advance parole based on the pending I-485.

What If I Cannot File the I-485 Yet?

This can be particularly important for applicants whose priority dates are not current under the Visa Bulletin.

You might receive NIW approval but still be unable to file an I-485 for years. In that situation, the NIW petition alone does not solve the problem of maintaining lawful status in the United States.

You may need to consider maintaining or obtaining another nonimmigrant status, or potentially completing the green card process through a U.S. consulate abroad.

Should I Stay in the United States or Leave?

This is not a decision that should be made based on a blog post.

Whether you should remain in the United States, extend or change your nonimmigrant status, file adjustment of status, or depart and pursue consular processing can depend on your current status, immigration history, Visa Bulletin availability, unauthorized employment, travel plans, and many other factors.

The consequences of making the wrong decision can also be significant.

If your nonimmigrant status is approaching expiration and you are considering an EB-2 NIW, talk to an immigration attorney before your status expires. An NIW may be an important part of your long-term immigration strategy, but the NIW petition itself is not a substitute for maintaining lawful immigration status.