Blurring the Line Between Immigrant and Nonimmigrant Visas

By David North on May 10, 2012

This may sound a little specialized, but the lines between immigrant and nonimmigrant visas have blurred a bit over the years — and sometimes that is not a bad thing.

There are three different variations on this theme:

  1. Conditional Residence (CR) visas have been introduced that can be converted to full green card status after two years.
  2. Sequences of nonimmigrant visas have been created to ultimately take aliens to green card status.
  3. Some nonimmigrant visas are, in fact, not temporary as they can be renewed indefinitely.

Each of these visas or sequences has been introduced separately and there seems to be no body of law or regulations covering them as a group. And to my knowledge nothing has been written about them as a phenomenon until now. Here are some examples of these systems:

The Conditional Residence visa was created following a Senate immigration subcommittee hearing on marriage fraud in 1985. It was designed to make sure that marriages were really solid, having lasted for at least two years, before the citizen spouse could ask the government to give the alien spouse a green card. It also made sure that anyone practicing marriage fraud could not do it more than once every two years.

Years later, the same two-year Conditional Residence visa was introduced in the immigrant (EB-5) investor program, for similar reasons. The government wanted to make sure that before an alien got a green card for making at least a half-million-dollar investment that the money had, in fact, remained invested for two full years, as I explained in a CIS Backgrounder on the subject.

The nonimmigrant visa sequence leading to a green card is a fairly common piece of the immigration puzzle. For example, an R-1 nonimmigrant visa for a religious worker can lead to a green card as outlined in this USCIS document.

Similarly, U nonimmigrant visas for crime victims can lead directly to a green card; and a K-1 visa for an alien fiancée can lead first to a marriage, then a Conditional Residence visa, and then a green card.

The more or less permanent nonimmigrant visa class includes the E-1 and E-2 visas for treaty traders and treaty investors, as well as visas granted to residents of the former American-managed islands in the Pacific, such as the Federated States of Micronesia. They can live and work in the United States for the rest of their lives without seeking permanent resident alien status. (Few of these islanders have come to the mainland, but they have become substantial low-income populations in Guam, the Commonwealth of the Northern Mariana Islands, and Hawaii.)

There are both policy advantages and disadvantages to each of these three types of line-blurring situations. On the one hand, nonimmigrant visa procedures tend to be more relaxed than those surrounding the issuance of a green card. On the other hand, each of these situations gives government officials at least one more chance to review a situation before permanent resident alien status is provided or the nonimmigrant visa is extended.

I have seen decisions made by the USCIS in-house appeals body, the Administrative Appeals Office (AAO), in which line officers have denied green card applications in both the R-1 and EB-5 situations, despite the fact that the nonimmigrant decision had been made in favor of the alien. After the passage of time, and perhaps putting the second decision in the hands of other officers, facts emerge that cause the application to be denied — something that would not have happened in a one-step process.

On the other hand, visa sequencing can be manipulated to favor recent alien college graduates over citizen graduates as both seek high-tech jobs in the United States, as I reported in a recent blog.

I have little enthusiasm for the continuous renewal of nonimmigrant visas, but they do have the advantage of not setting up migration chains. The treaty trader arrives, perhaps with his or her immediate family, but no one secures the right to file further applications to bring in still more people as relatives of the first arrivals. I suppose that is damning with faint praise.

The whole field deserves to be watched closely, as such creativity has, in recent years, often been introduced to make migration easier for some special populations. That it has sometimes provided an opportunity for a second review of a migrant's papers is largely a matter of luck.