How to Stay in the United States
October 9, 2017
Changing Immigration Status
It is very common for non-immigrant visitors to want to extend their stay in the US. In fact, many non-immigrant visitors decide to remain in the US permanently. Deciding to remain in the US is not illegal, unless the immigrant determined to remain in the US when they applied for their temporary visa. By law, non-immigrant visitors to the US must not have an intention to migrate to the US when they apply for their non-immigrant visa. They can, however, change their mind and decide to migrate after they receive their non-immigrant visas and enter the United States.
A common example of non-immigrant visitors who change their mind and decide to remain in the US are foreign nationals who enter the US as students on an F1 student visa. However, there are very few legal ways for F1 students to remain in the US long term. Everyone knows an F1 student who has stayed in the US because they married an American. While this is a legitimate way to remain in the US, it is highly scrutinized by the US government and is not recommended unless the F1 student is marrying a US citizens for traditional reasons. Marrying to remain in the US is not legal if the purpose of the marriage is immigration.
Another way for F1 students to remain in the US is to find a US company that will sponsor them for Optional Professional Training, or OPT. Technically, OPT is a one year extension of the F1 student visa beyond graduation (for STEM jobs, OPT can be for a period of 3 years). However, by definition, OPT is not a permanent solution; it merely extends the students F1 stay for one additional year.
The best way for F1 students (and other non-immigrant visa holders including tourists) to permanently migrate to the United States is to obtain Sponsorship from a US business with an EB3 visa. Ideally, for F1 students, the businesses that sponsored their OPT will sponsor them for the EB3 visa after the completion of the OPT year. This is not as easy as it may seem, because the EB3 process is more time consuming and complex than most Mid-size to small business are willing to invest for one employee.
Once an F1 student finds an employer to sponsor them for their EB3 visa and the USCIS application is filed, the F1 student can file I-485 change of status requesting to change their status from a non-immigrant F1 student visa to an Immigrant EB3 permanent resident visa. If the F1 student files the USCIS EB3 application prior to the expiration of the F1 student visa (including the OPT extended year), the student will not have to return home for consular processing and will be interviewed in the United States at the closest USCIS service center. Therefore, it is possible for a non-immigrant visa holder to change their status to an immigrant visa without leaving the United States through an EB3 visa application.