Short Answer: Not always. You must be eligible to adjust status (I-485) and must have applied to adjust status concurrently with (or after) your EB-2 NIW (I-140) petition before the expiry date of your current status to be allowed to stay beyond expiry of your status.
Long answer: With the new guidelines which facilitated national interest waiver (NIW) adjudication for STEM degree holders and entrepreneurs, more applicants are now considering the EB-2 NIW green card as a viable pathway to living and working in the United States long-term.
For applicants already studying or working in the United States, a frequent question we hear is whether filing an NIW petition would automatically extend one’s status in the United States.
Filing an immigrant petition for foreign worker (I-140), on its own, does not authorize an applicant to stay beyond the expiry of their status.
It is important to note that there are two parts to an EB-2 NIW petition. The first part is the Form I-140, an immigrant petition for foreign worker with a request for National Interest Waiver (NIW), which you file to USCIS. Approval of your Form I-140 is the prerequisite to the green card. The second part is the application for an immigrant visa or a green card. Approval of the Form I-140 gives you the ability to either apply for an immigrant visa at a consulate in a foreign country, or apply to adjust status (I-485) to a green-card holder from within the U.S. if you are already in the U.S. in a different status.
Filing the Form I-140 and NIW application, on its own, does not authorize an applicant to stay in the U.S. beyond the expiry of their status, even during the time while it’s pending.
Filing an adjustment-of-status (I-485) application, if received by USCIS before expiry of the applicant’s status, will allow them to stay in the U.S. while this petition is pending.
Having said that, filing an adjustment-of-status (I-485) petition, if received by USCIS before expiry of the applicant’s previous status, does allow an applicant to continue to say in the United States during the time the I-485 petition is pending.
In many cases, an NIW applicant in the U.S. may be eligible to file an adjustment-of-status (I-485) petition concurrently with the I-140 petition. To do so, their “priority date” must be current and they must not be subject to any other bars to adjusting status. In this case, if the adjustment-of-status application is filed before expiry of the applicant’s previous status, the applicant will be allowed to continue to stay in the U.S. during the time the petition is pending.
To conclude, in order to be authorized to continue staying in the U.S. while your application is pending, your adjustment of status (I-485) petition must be filed concurrently or after USCIS receives the I-140 petition, and must be received by USCIS before the day your status expires.
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