The Path from Business Visa to US Green Card
If you are a non-US national currently in the USA under a Business Visitor Visa, you may be looking to extend your stay, or even settle in the United States on a permanent basis. We look at whether business visa holders can apply to prolong their time in the US and whether they are eligible for US permanent resident status.
Extending your permitted business visitor stay in the US
The Business Visitor Visa is a nonimmigrant visa for those travelling to the US temporarily to engage in business activities, such as attending a conference or seminar, or other legitimate activities of a commercial or professional nature. This can include the following:
- Consulting with business associates
- Travelling for a scientific, educational, professional or business convention on specific dates
- Settling an estate
- Negotiating a contract
- Participating in short-term training.
To qualify for this category of visa you will also be required to show an intent to return to your country of residence at the end of your stay.
Having been granted a B-1 visa, border officials at the port of entry must still authorise your admission to the USA. Where permitted, you will be admitted for the period necessary to carry out your business activities, typically between 1 to 6 months, although you may be able to extend this period for a total stay of up to 1 year. If you wish to stay beyond the time indicated on your Form I-94, ie; your arrival/departure record, you must file Form I-539, Application to Extend/Change Nonimmigrant Status, with US Citizenship and Immigration Services (USCIS) before your authorized stay expires.
Having determined what date your authorized stay expires from your Form I-94, you should apply at least 45 days before the expiry date. You can apply to extend your stay if you satisfy the following criteria:
- You were lawfully admitted into the US with a nonimmigrant B-1 visa
- Your nonimmigrant B-1 visa status remains valid
- You have not committed any crimes that make you ineligible for a visa
- You have not violated the conditions of your admission
- Your passport is valid and will remain valid for the duration of your stay.
If you are applying to extend your stay, you will need to explain the basis of your application and provide the reasons why your extended stay would still be temporary, including what arrangements you have made to depart from the United States at the end of your trip.
Can I transfer to a Green Card?
Under a nonimmigrant visa, including the B-1 visa, you will only be permitted to stay in the United States for a time-limited period. As such, you will not generally be permitted to apply for a Green Card as a B-1 visa holder.
However, some nonimmigrant visas are known as “dual intent” visas. A dual intent visa is where a non-US national is able to enter the USA with temporary status but the visa route allows the holder to apply for an immigrant (permanent) visa where they meet the eligibilty criteria. In other words, they are allowed to apply to transfer to lawful permanent residence status while in the USA, notwithstanding that they entered the country for the purposes of a limited stay only.
The B-1 visa does not have dual intent. A possible route instead may be to consider applying to change your status to a visa with dual intent, which in turn will open up a path to a Green card. If you are currently in the United States in a lawful nonimmigrant status, you may file Form I-129 to request a change of status to a different classification, and provide supporting evidence of your eligibility under the new visa category.
This could include applying for the H-1B visa, for graduate level workers in speciality occupations that require theoretical or technical expertise, or an O-1 visa for those who are exceptionally talented and at the top of your field.
However, in either case you would first need the offer of a job and have a US sponsor in place to file a petition on your behalf.
You could also consider, by way of alternative, the E-2 nonimmigrant visa. Although the E-2 visa is not strictly speaking a dual intent visa, it does not preclude an E-2 visa holder from filing an adjustment of status petition (see below).
What is the E-2 visa?
The E-2 visa, or the Treaty Investor visa, is a nonimmigrant work visa for nationals of countries with which the USA maintains a treaty of commerce and navigation, and who wish to invest a substantial amount of capital in a US enterprise. Essentially, the E-2 visa is for individuals looking to buy into a business in the USA, or to invest in a brand new start-up business.
As a foreign investor, under an E-2 visa you will be allowed to enter the US for the purpose of directing the operations of an enterprise in which you have invested, or are actively in the process of investing, a substantial amount of capital. There is no legal investment minimum, although in practice you will probably need at least US$100,000 to US$150,000.
Although the E-2 investor visa does not automatically lead to a green card, it does open up potential options. Further, as an E-2 investor, you are also able to renew your visa indefinitely if your business continues to function successfully, although you must continue to express an unequivocal intent to return to your country of residence when your E-2 visa expires.
Which US business visas lead to a Green Card?
For E-2 investors one of the most popular “green card” routes is under the EB-5 Investor Program, assuming you have more money to invest. The EB-5 route requires an investment of $1 million, or $500,000 in a rural area or area of high unemployment, in a new commercial enterprise that will benefit the US economy and create at least 10 full-time positions for qualifying employees.
Further, you will only initially be granted what’s known as “conditional permanent residence”, whereby additional steps will need to be taken within 2 years of obtaining this status to remove these conditions. Here, the US government essentially wants to confirm that the investment was successful.
To apply for an EB-5 green card, you would need to file Form I-526, Immigrant Petition by Alien Entrepreneur. Once your petition had been approved, you would then need to file Form I-485, Application to Register Permanent Residence or Adjust Status. It is crucial, however, that you work with a qualified immigration attorney as you must carefully orchestrate the timing of each application to maintain valid immigration status.
Further, under US immigration law, you are prohibited as an E-2 applicant from applying through the adjustment of status process without waiving certain legal rights provided in the E-2 treaty trade agreement.
As such, you will additionally need to file Form I-508, Request for Waiver of Certain Rights, Privileges, Exemptions and Immunities. Given that this may affect your tax liability and other benefits under the E-2 treaty program, you should again seek expert legal advice before submitting your application.
Are there any alternatives?
For those without the funds to invest, there are alternatives to the EB-5 Immigrant Investor Program when seeking lawful permanent residence. Indeed, many entrepreneurs may be eligible to apply for a green card through the EB-1A Extraordinary Ability or EB-2 National Interest Waiver (NIW) categories.
The EB-1A category is for those who have risen to the top of their field in the sciences, arts, education, business or athletic fields, where the applicant intends to work in that field in the US, while the EB-2 NIW category is available to individuals who are able to demonstrate that they are looking to take on an endeavour with both substantial merit and national importance.
These paths to permanent residence offer entrepreneurs alternatives that relieve them of some of the burdens involved with the EB-5 program. These categories do not require any investment, and they offer immediate paths to permanent residence, with no need to remove conditions.
What about visa-free travel?
In many cases, business visitors can initially enter the United States without any visa whatsoever, subject to qualifying under the US Visa Waiver Program (VWP). The VWP allows citizens of 38 countries to travel to the US without a visa for business, tourism or transit to another country for a period up to 90 days.
However, you will not be permitted to extend your stay under the VWP. Instead, you will be required to go back to your country of residence to apply for a nonimmigrant or immigrant visa.
Further, as a general rule, foreign nationals who enter the USA under the VWP may not seek to adjust their status to that of a lawful permanent resident.
NNU Immigration can help if you have a question about a Green Card
NNU Immigration’s specialist US immigration attorneys can help with all Green Card applications, including advice on eligibility and the application process.
If you have a specific question or require support with your application, please get in touch contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.
Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
