Can You Get Your Green Card as a Student Visa Holder?

Applying for your green card while under a student visa can be much more than just paperwork. Entry into the United States can actually be denied if the student visa holder has a green card pending. This is because a student visa requires an intention to stay temporarily, called “nonimmigrant intent.” Filing for a green card shows immigrant intent and may lead to denied entry into the country. 

Many people take this risk, as the situation depends on the immigration officer. However, students are not at the luxury of missing a school years’ worth of education because of faulty paperwork.

“International students are already under so much stress to perform well academically at their school of choice,” says Mario Godoy, an Immigration Lawyer from Godoy Law Office. “Getting their paperwork straightened out removes one thing from their shoulders.”

To help get a better understanding of how to properly file for a green card while under a student visa, let us look at the two options students can take to obtain safe harbor.

Safe Harbors

Safe harbor is the process where a person – in this case, a student – can have a green card pending without travel being affected. There are two main methods for obtaining safe harbor.

Obtaining a Nonimmigrant Visa

There are many kinds of nonimmigrant visas that can help you get safe harbor, but we will be focusing on the three most common. All three visas/statuses refer to specialized areas of work. If you or a family member fit any of these descriptions, you may be able to apply for one of these statuses.

The first visa type is the H-1B, which allows nonimmigrants to come into the United States for specialized work. This covers everything from a cybersecurity expert for the Department of Defense (DOD) to an internationally famous fashion model.

L-1 has two sub-classifications. The first is L-1A, specifically targeting those in managerial or executive positions in offices outside the country for United States companies. L-1B covers other intracompany employees with specialized knowledge.

Both H-1B and L-1 visas are considered dual intent visas. By allowing a nonimmigrant to have immigrant intent, a person can have both a student visa and a green card pending.

O-1 statutes are a bit different. They also allow for dual intent, but through implication and policy rather than directly. To qualify for an O-1 visa, a person needs to possess a high skill in science, art, education, business, or athletics. If the person is also recognized nationally or internationally for their television or film performances, they can also qualify for an O-1 visa.

Adjustment of Status

The second way to get safe harbor is by applying for the last step in the green card process called the adjustment of status (AOS). At this stage, it is safe to travel on advanced parole. 

Also referred to as Form I-1485, AOS is the last step for people already in the United States legally, such as on a student visa. This form can only be filed in the student’s country of birth, not citizenship. There is an exception where you can use a spouse’s country of birth. 

Depending on the country, it can take years to get through this last step of the process. Indian students can wait several years to be cleared. Beyond that, the green card also has to be filed with the United States Citizenship Immigration Services (USCIS) and may require preclearance by the United States Department of Labor. That alone can take up to a year. 

For these reasons, it is wise to get a head start on the process. For example, when obtaining an H1-B visa, a green card petition can extend H1-B status beyond the standard six years. 

Sandra Brookover