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Adjustment of status not available to aliens in transit without visa

DID YOU KNOW that adjustment of status is not available to foreign nationals who have layovers in the United States before traveling to their final destination out of the country if they choose not to leave the country unless they have secured a "C" visa prior to entry into the United States. Our office receives inquiries from time to time asking if aliens entering the United States in transit to another country may adjust their status to a lawful permanent resident (holder of a green card) if they decide not to leave the United States during a brief layover or wait for their flight to a destination out of the country. The simple answer is no. Without a visa, the immigration laws of the United States will not permit an alien to circumvent the normal immigrant visa process by entering in transit without a visa ("TWOV"). No adjustment of status is available to such aliens even if they are or become eligible for permanent residence. Aliens who enter as TWOVs must return to their country of origin or to the country where they last resided to secure immigrant visas and will not be allowed to remain in the United States while their immigrant visa is processed abroad.

This result will not apply, however, if the alien has obtained a "C" visa (which authorizes transit through and stays in the United States not to exceed 29 days) prior to their departure to the United States because different rules apply to aliens who enter as TWOVs than aliens entering with "C" visas. In the latter case, i.e., "C" visa recipients, adjustment of status is a viable option; whereas, in the case of aliens entering as TWOVs, adjustment of status is not an available remedy under existing United States immigration law. As a result, careful planning of one's trip to the United States may enable a foreign national to gain lawful permanent residency and that long sought after "green card."

WE ARE HERE TO HELP! With the assistance of our immigration attorneys, you do not have to navigate the complex field of immigration law on your own. Please contact us with any immigration questions you may have.

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