Eligibility to Receive a Second Immigrant Visa While on LPR Status

Introduction: Receiving for an Immigrant Visa While Already a Permanent Resident

Labor CertificationIn certain circumstances, an alien who is a lawful permanent resident (LPR) may be able to receive another immigrant visa for a different preference category. An LPR may only receive another immigrant visa in a different preference category through consular processing. An LPR may benefit from this for purpose of conferring derivative status (rather than filing a family-sponsored petition in the second preference category). Additionally, an LPR may benefit from an immigrant visa in a different preference category if the basis on which he or she obtained LPR status would be detrimental in traveling to a specific country. However, because there are no statutes, regulations, or administrative or judicial precedent setting rules for an LPR who seeks a second immigrant visa, this area of immigration law is not well developed. Additionally, the positions of the United States Citizenship and Immigration Services (USCIS), Department of State (DOS), and Department of Labor (DOL) are not all aligned with regard to this issue. In this article, we will examine the relevant guidance from the DHS, DOS, and DOL on the ability of an LPR to receive another immigrant visa in a different preference category.

Receiving a Second Immigrant Visa for an LPR

The majority of guidance on the issue of when an LPR can receive a second immigrant visa is found in letters written by officials from the DOL, DOS, and USCIS.

Department of Labor Position With Regard to Labor Certification

As we will examine in the next two sections, it is possible for an LPR to receive a second immigrant visa. However, in a 1994 letter, the DOL took the position that it will not knowingly process a labor certification application [see category] for an alien who is already admitted as an LPR.1 This is because under DOS regulations found in 20 C.F.R. 656.3, an LPR falls under the definition of “U.S. worker.” The DOS's position effectively means that an LPR cannot receive a second immigrant visa in an employment-based category that requires labor certification.

Department of State Position

The DOS's Foreign Affairs Manual (FAM) serves as a rule book for consular officers. While the Department of Homeland Security (DHS) may use the FAM as guidance, its contents are only binding on DOS officers.

In 9 FAM 502.1-2(d), the FAM states:

There is no legal restriction preventing a lawful permanent resident (LPR) from obtaining another immigrant visa in a different preference status to confer a derivative status on a spouse or child. There is no requirement that the alien resident abandon their LPR status.

The DOS takes the position that an LPR may obtain a second immigrant visa for purpose of conferring derivative status to a spouse or child. This position is not grounded in a particular statute or regulation, but rather that neither the Immigration or Nationality Act (INA) nor the regulations prohibit the conferral of a second immigrant visa to a person who has already been admitted for permanent residency. Notably, the FAM makes clear that the DOS does not require the LPR to abandon his or her status in order to obtain another immigrant visa in a different preference status.

The guidance in the FAM reflects the position the DOS took in a 1991 correspondence with an LPR who was seeking a second immigrant visa.2 However, the letter addressed a slightly different situation than the example used in the FAM, of an LPR who seeks a second immigrant visa to confer derivative status on a spouse or child. The LPR at question in the letter was a native and citizen of Iran who had obtained LPR status after being granted asylum. In this case, the LPR sought an immigrant visa in one of the preference categories to avoid having the Iranian government discover that he or she had been granted asylum in the United States (the basis for permanent residency is indicated on the Form I-551, Permanent Resident Card). This illustrates a different situation where the ability for an LPR to obtain a second immigrant visa in a different category may be useful. In a separate correspondence, the DOS took the position that an LPR who sought another preference status to confer derivative benefits on his wife would not have to relinquish his Form I-551 before receiving the new status.

United States Citizenship and Immigration Services Position

In a 1993 letter, the then-Immigration and Nationality Service (INS), which is now the Department of Homeland Security (DHS), took the position that an LPR may not adjust to permanent resident status under a different basis.3 The letter concerned two LPRs who had gained LPR status on the basis of having been granted asylum, and who sought an immigrant visa in a preference category so that their Forms I-551 would not reflect that they had been granted asylum. The DHS took the position that there is no procedure by which an LPR may relinquish his or her status in the United States for purpose of applying for adjustment of status in a different category. This effectively means that an LPR may not change the basis for his or her LPR status without departing the United States.

On February 9, 2012, the Administrative Appeals Office (AAO) issued a non-precedent decision [PDF version] concerning an immigrant visa petition filed on behalf of an LPR in the EB3 category.4 While the decision does not create binding precedent, it provides an interesting example about how the United States Citizenship and Immigration Services (USCIS) may handle immigrant visa petitions filed on behalf of persons already admitted for permanent residency. In the decision, the AAO held that because there is no statute or relevant regulation that prohibits the USCIS from approving an immigrant visa petition filed on behalf of an LPR, the USCIS erred in this case by denying the petition on the basis that the applicant was already an LPR. However, because the USCIS does not permit an LPR to adjust status, an LPR who had an immigrant visa petition in a different category approved would have to obtain his or her visa through consular processing [see category].

The AAO decision cites two interesting legacy INS legal opinions that USCIS may still rely on. First, a legal opinion took the same position that DOS did in that the INA “does not preclude a lawful permanent resident from abandoning his permanent resident status and returning to the United States with a new immigrant visa.”5 This means that the USCIS may approve an immigrant visa petition file on behalf or by an LPR because there is nothing prohibiting it from doing so.6 However, the legal opinion took the same position as the subsequent INS letter that the alien must receive the new immigrant visa overseas. In a legal opinion released earlier that same year, the INS took the position that “[o]nce an alien obtains lawful permanent residence by one root, [any] other applications become superfluous and should be administratively closed as moot.”7 This means that if an alien has a pending application for permanent residency when he or she is granted LPR status, the pending application will likely be administratively closed. This, however, has no bearing on whether a person who is already on LPR status may seek LPR status on a permanent basis.

Conclusion: Receiving for an Immigrant Visa While Already a Permanent Resident

There are limited cases in which a person admitted as an LPR may want to obtain an immigrant visa on a different basis. As we discussed in the article, this process may be useful for an LPR who wants to confer derivative status on a relative rather than to go through the potentially long petitioning process or for an LPR who gained his or her status on the basis of being granted asylum. Before taking action to seek permanent resident status in a different category, the LPR should consult with an experienced immigration attorney for a full assessment of his or her immigration situation and objectives. If eligible, an LPR may want to instead consider naturalization, which would render potentially render the reason for which he or she would consider LPR status on a different basis moot [see category].

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  1. 71 No. 45 Interpreter Releases 1553 (Nov. 18, 1994)
  2. 69 No. 11 Interpreter Releases 354 (Mar. 23, 1992)
  3. 70 No. 34 Interpreter Releases 1172 (Sep. 3, 1993)
  4. The application as accompanied by an approved labor certification application, as required for EB3 immigrant visa petitions. The DOL's position would appear to prohibit, in general, the approval of a labor certification application for a person admitted for permanent residency. However, the DOL's position has no effect on USCIS or DOS provided that the LPR has an approved labor certification application with his or her immigrant visa petition.
  5. Paul Virtue, Acting General Counsel, INS, Legal Opinion, Eligibility of Lawful Permanent Residents for Adjustment of Status, Genco opinion, 89-90 (Dec. 21, 1989)
  6. The Genco opinion takes the position that the applicant must abandon his or her LPR status overseas. The language of the USCIS position is therefore distinct from the DOS which states that the LPR need not abandon his or her status in order to receive another immigrant visa in a different preference category,
  7. Raymond Penn, Assistant Commissioner Legalization, INS, Permanent Residence Granted Under Multiple Sections of the Immigration and Nationality Act, Genco Opinion 89-38 (April 6, 1989)

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1171-72, Print. Treatises & Primers.