The L-1 visa is one of the best and quickest ways to achieve green card status. Once obtaining your L-1 visa, the path you take to get your green card status depends on whether you have an L-1A or L-1B visa. To learn more about the L-1A and L-1B visa see our article here. Furthermore, adjusting your status while already in the United States allows you to potentially receive permanent residence without having to return to your home country.
What Are Dual Intent Visas?
There are essentially two broad categories of U.S. visas: Dual Intent Visas and Nonimmigrant Intent Visas. Visas with Nonimmigrant Intent are essentially for temporary visitors to the United States, no matter how long their visa lets them legally stay in the country. These visa holders do not have the opportunity to adjust their status and achieve a Green Card/Permanent Residency to remain in the United States; on the basis of their Nonimmigrant Visa alone.
Nonimmigrant Visa seekers (for the majority of Nonimmigrant Visas), must prove to the U.S. embassy if applying from abroad, that they don’t have the intent to remain permanently in the United States to be eligible for such a visa. Similarly, Nonimmigrant Visa holders (again for the majority of Nonimmigrant Visas), who are seeking admission to the United States for the first time or subsequent times, must also overcome what is legally called the “presumption of immigrant intent.” Meaning, that they have to convince the DHS official at the Port of Entry that their stay in the United States is not intended to be permanent, and that they intend to return to their home country. The United States generally assumes the individual intends to remain in the U.S. and the burden is on the alien to demonstrate that they do not intend to abandon their foreign residency.
Some ways to demonstrate this intent are: family/personal ties in their home country, business ties, property holdings and ownership, and social and cultural ties. If a Nonimmigrant Visa holder shows intent to remain in the United States, they can potentially have their visa canceled, have restrictions placed on future visa applications, or they can even be potentially banned from the United States.
However, there are a couple of visas that allow their holders to enter the United States as Nonimmigrant, the issue of Immigrant Intent is inapplicable, and the option of applying for a Green Card in the future is explicitly preserved. The H-1B visa and the L-1 visa are two examples of Dual Intent Visas. These visas provide a clear path to a Green Card. L-1A Visa If you have an L-1A visa as a manager or executive, the process for obtaining a Green Card and Legal Permanent Resident (LPR) status is faster and easier than those with an L-1B visa. An L-1A visa:
- Does not require a PERM Labor Certificate;
- Does not require a Conditional Green Card; and,
- Is less time-consuming than other Green Card options.
By not requiring a PERM Labor Certificate nor a Conditional Green Card period as other Dual Intent Visas do, this potentially saves you years of time, in obtaining your full Green Card status. An L-1A Visa holder is usually eligible to apply for an EB-1 Visa or an EB-2 Visa. For more information on the L-1A Visa, please see our article on L-1 Visas available here.
L-1B Visa to Green Card
The L-1B Visa requires a few more steps than the L-1A process. An L-1B Visa holder is usually eligible to apply for an EB-2 or an EB-3 Visa. The EB-2 Visa is designed for people who hold a professional degree in their field, or who can show exceptional ability. The EB-3 visa applies to bachelor’s degree workers, skilled workers, and unskilled workers. No matter if you have an L-1B or an L-1A Visa, the first step is ensuring that your employer is willing to sponsor you for your employment-based Green Card Visa. Once your employer has agreed to sponsor you, if you have an L-1B Visa, you must obtain a PERM Labor Certification. A PERM Labor Certification requires that the employer prove that there are no available and eligible U.S. Citizen workers capable of taking your position and that you will be paid a competitive wage. This process takes an average of 8 to 9 months. Once the PERM Labor Certification is filed and approved by the United States Department of Labor, your employer must file form I-140 (Immigrant Petition for Alien Worker) to be approved by the USCIS. Unfortunately, your nationality determines the date you will be eligible to receive your Immigrant Visa. If you are a Chinese or Indian National read more about your longer wait time here. Once your I-140 is processed and approved, your employer will file the I-485 Adjustment of Status form (this can also be done concurrently with your I-140 if your Priority Date is current); and pending its approval, and an average weight of about 6 months, you will be a Legal Permanent Resident and Green Card holder with an official stamp in your passport.
The H-1B Visa allows employers within the United States to hire foreign workers in specialty occupations. This visa is a Dual Intent Visa, however, it has an annual cap of 65,000 (plus some exempted additional ones) that may be issued. Individuals with Master’s Degrees or higher are exempt from the cap, if they are one of the first 20,000 people to apply for the visa, or are petitioned for on behalf of an institute of higher education (a University). Please see our article on H-1B Visas to see if it could be an option for you.
The H-1B is a dual-intent visa.
This means that when applying for your H-1B Visa, or when seeking admission to the U.S. as a holder of such, you do not have to prove that you plan to return to your home country. The H-1B Visa allows holders to petition for Permanent Residency and obtain Green Card status. In order to be granted your Green Card status, like the L-1 visa, you must first find an employer (usually your current employer) willing to sponsor you for an employment-based visa. They must then go through the PERM Labor Certification Process on your behalf, before filing the I-140 Immigrant Petition for Alien Worker form, and finally the I-485 Adjustment of Status (which can be filed at the same time as the I-140). H-1B Visas allow the holder to remain in the U.S. for up to three years (6 years if you get an extension), and during that time you are allowed to petition for Permanent Residence and adjust your Nonimmigrant status to an Immigrant status. One problem with the H-1B to Green Card transition is that individuals and their families who are eligible to apply for Green Card status, often find themselves having to leave after their 6-year (with extension) H-1B Visa validity period ends; and before their Green Card petitions are approved. This is especially true for individuals from China and India who are granted the same percentage of Immigrant Visas as countries with smaller populations, who do not meet their annual maximum. Read more about specific issues relating to the immigration of Indian and Chinese nationals, here.
Benefits of L-1 and H-1B Visas over pursuing Immigrant Visas from Abroad: This all seems like a lengthy and complicated process, and it is, however, there are many benefits to applying for the L-1 and H-1B Visas if you are eligible.
- The wait time for coming to the United States on an H-1B Visa is almost always shorter than waiting for a largely equivalent Immigrant Visa to become available, and you can live and work in the United States while you start the process of pursuing your Green Card.
- The L-1 Visa does not have an annual cap on the amount of L-1 Visas that can be issued (unlike the H-1B visa), and it has a higher rate of approval if qualified. Also, if your employer files for L-1 Visas a lot, they could already be eligible to file a blanket L-1 Visa petition; significantly reducing your wait time. Like with the H-1B Visa, the weight time for an L-1 Visa is almost always shorter than waiting for an equivalent Immigrant Visa to become available, and you can live and work in the United States while you start the process of pursuing your Green Card.
- After you have submitted your Adjustment of Status request, Form I-485 (to pursue your Green Card while in the U.S.), you will typically be able to travel freely in and out of the United States without harming your Permanent Residency application, and without applying for Advance Parole; because of your valid L and or H Visa status.
If you wish to learn more about this process, please contact an experienced immigration attorney. It is crucial that you know as much as you can about the immigration process so that you are able to make the best decision for yourself and your family.