The United States is a visa country, meaning that anyone that comes to the U.S. must have a visa to enter. The Nonimmigrant visas are issued to foreign nationals who intend to remain in the (U.S.) for a temporary period or otherwise less than permanent period of time. There are more than 40 nonimmigrant visa categories, each used for a different, but very specific purpose, depending on the particular reason for coming to the U.S.

Some visas authorize temporary employment in the U.S.; others permit tourists to visit, students to study, and diplomats to serve their home country’s interests. If your original reason for coming to the U.S. changes after you get arrive, you may be required to change your nonimmigrant status to a different one before you may lawfully begin to engage in the activities you want to pursue.

Reasons to Change to New Nonimmigrant Category:

A nonimmigrant is an individual that enters the U.S. temporarily for a specific purpose such as business, study, temporary employment or pleasure. When you arrive at a US port of entry, either an airport, seaport, or land border, you will be inspected by a U.S. immigration officer. As part of the inspection the officer will assign you a nonimmigrant visa category according to the intended purpose of your visit, and you will be admitted. If you later want to change the purpose of your visit while you are in the U.S., then you or, in some cases, your employer must ask the U.S. Citizenship and Immigration Services (USCIS) to change your nonimmigrant status.

Eligibility Criteria to Change your Status in the U.S.:

You may be eligible to apply for change of status in the U.S. if:

• You were lawfully admitted into the U.S.;
  
  
• You have not committed any act that would make you ineligible to receive an immigration benefit;
  
  
• There is no other factor that (in the sole discretion of USCIS) would warrant requiring you to depart the U.S. and make a reentry with a different visa classification (for example, a USCIS officer may determine for any number of reasons that you should obtain a new visa prior to being readmitted into the U.S.); and
  
  
• You submit an application for a change of status before the expiration date on your Form I-94, Arrival-Departure Record (There are certain very limited circumstances under which USCIS will excuse a late filing of such an application.).
  
  NOTE: You must also have a passport that is valid for your entire requested period of stay in the new nonimmigrant classification in the U.S.

Who is Not Eligible to Change Their Status in the U.S.?

Not all nonimmigrants in the U.S. are allowed to change their nonimmigrant status. If you were admitted in any of the following nonimmigrant categories, you will not be able to change your nonimmigrant status:

• C (Aliens in Transit)
  
  
• D (Crewmen)
  
  
• K-1 or K-2 (Fiancé(e) or Dependent of Fiancé(e))
  
  
• K-3 and K-4 (Spouse of U.S. Citizen and Minor Child Accompanying/Following to Join)
  
  
• S (Witness or Informant)
  
  
• TWOV (Transit without Visa)
  
  
• WT or WB (Under the Visa Waiver Program, you would have been issued a green Form I-94W, Nonimmigrant Visa Waiver, Arrival-Departure Record)
  
  
• J-1 (but only Exchange Visitor subject to the two-year foreign residence requirement, with certain exceptions)
  
  
• M-1 (Vocational student changing to F-1 or H-1B if the M training helped him or her qualify for the H classification)
  
  
• Q-2 (Irish Peace Process Cultural and Training Program Participant – subject to two-year foreign residency requirement)
  
  NOTE: If you are in any of the above categories, you must depart the U.S. on or before the date your I-94 expires.

How to Change Your Nonimmigrant Status?

How you apply and which form you use depends on the nonimmigrant status to which you want to change.

Employment-Based Categories:

An individual wanting to change their status to one of the following employment-based nonimmigrant categories must have an employer willing to sponsor them for a visa. The prospective employer should file a Form I-129, Petition for Nonimmigrant Worker, on your behalf before your Form I-94 expires. This form serves two purposes: it is used to establish that:

1. You will be performing the type of work for the petitioner that is covered by the new nonimmigrant classification sought, and
   
   
2. You personally meet the requirements for changing your status.

You cannot begin work in the new classification until USCIS approves your change of status. The employment visa categories covered are:

• E-1 or E-2 (Treaty Traders and Investors)
  
  
• H1B, H-2A, H-2B or H-3 (Temporary Workers)
  
  
• L-1A or L-1B (Intra-company Transferee)
  
  
• O-1 or O-2 (Aliens with Extraordinary Ability)
  
  
• P-1, P-2, or P-3 (Athletes and Entertainers)
  
  
• Q-1 (International Cultural Exchange)
  
  
• R-1 (Religious Workers)
  
  
• TN-1 or TN-2 (NAFTA Canadians and Mexicans)

Non-employment Based Categories:

If you wish to change your status to one of the following nonimmigrant categories, you will need to file Form I-539, Application to Extend/Change Nonimmigrant Status:

• A (Diplomatic and Other Government Officials, Immediate Family members, and Employees)
  
  
• B-1 and B-2 (Visitors for Business or Pleasure)
  
  
• E (Treaty Traders and Investors dependents)
  
  
• F (Academic Students and dependents)
  
  
• G (Foreign Government Officials and Certain Immediate Family members)
  
  
• H-4 (Temporary Worker dependents)
  
  
• L-2 (Intra-company Transferee dependents)
  
  
• M (Vocational and Language Students and dependents)
  
  
• N (Parents and Children of Certain People Who Have Been Granted Special Immigrant Status)
  
  
• NATO (NATO Representatives, Officials, Employees, and Immediate Family members)
  
  
• O-3 (Aliens with Extraordinary Ability dependents)
  
  
• P-4 (Athletes and Entertainer dependents)
  
  
• R-2 (Religious Worker dependents)
  
  
• TD (TN dependents)

Change of Nonimmigrant Status for Spouse and Child:

If your employer files a Form I-129, Petition for Alien Worker, for you, then your spouse and child(ren) under the age of 21 must complete and file a Form I-539, Application to Extend/Change Nonimmigrant Status. They must also submit any required supporting documents to change to a new nonimmigrant category. It is best to submit both forms at the same time. If you are changing your own status with a Form I-539 you may include your spouse and any unmarried children under the age of 21 on your application if you are all in the same nonimmigrant category, or if your spouse or children were given derivative nonimmigrant status.

Derivative nonimmigrant status means that your spouse and children were given nonimmigrant visas based on your nonimmigrant status. For instance, if a student is given an F-1 "Academic Student" visa, then the spouse and child are given F-2 "Spouse and Child of an Academic Student" visas. Remember, though, that they are separate applications, and, therefore, you and your family members (and your employer) should follow the instructions and file all the supporting documents with each application, even when filing forms together.

What if Your Current Status Expires Before Applying for a Change of Status?

If your current status expired before you filed an application, or your employer filed a petition on your behalf, with the USCIS to change your status, or if you have otherwise violated the terms of your status, such as by working without authorization, then you are out of status. If you have fallen out of status, except in certain limited instances related to circumstances beyond your control, you cannot change your status.

Staying longer than the period of time for which you were granted admission may also have a negative effect on your ability to get other benefits or to return to the U.S. at a later time. If you fall out of status, we recommend you leave the U.S. as soon as possible to avoid, or at least minimize, the possible impact on your ability to come back to the U.S. at a later time.

When Should You Apply?

Waiting to the last moment is never a good idea. We recommend that you apply as soon as you determine that your reason for coming to the US has changed and you need to change to a different nonimmigrant category. Please note that your application to change your nonimmigrant category must be received by the USCIS before your current nonimmigrant status expires. Also, you can not start new employment without first being approved for your change of status. The date your status expires can be found in the lower right-hand corner of your Form I-94 (Arrival-Departure Record). You should have received a Form I-94 when you legally entered the U.S.

NOTE: We recommend that, if possible, you apply to change your status no later than 60 days before your I-94 is set to expire. You may apply six months before your I-94 expires to have your status changed.

If You Are Eligible for a Change of Status, and File On Time, Will Your Application be Approved?

There is no guarantee that a change of status will be approved, it is not automatic even if you meet all the requirements. USCIS will look at the facts of your situation, your current status, the reasons you want to change your status, and the reasons you did not apply for this kind of visa before you entered the U.S., and will decide whether to grant your application and, if they grant it, how long they will extend your stay in the new nonimmigrant status. USCIS will not grant a change of status for a reason inconsistent with the terms of the requested status, or where circumstances suggest it would be inappropriate.

NOTE: You may not engage in activities for which the new nonimmigrant status was sought until USCIS approves your application for change of status.

What If You File On Time but USCIS Doesn’t Make a Decision Before Your I-94 Expires?

If USCIS receives your application before your nonimmigrant status expires (or, in exceptional cases, it excuses filing after your status expires due to circumstances beyond your control), and if you have not violated the terms of your current status and you meet the basic eligibility requirements, then you may remain in the U.S. until USCIS makes a decision on your application. You will be considered to be maintaining your nonimmigrant status until USCIS makes a decision on your application. But remember, you cannot start the activities allowed by the status you are applying for until USCIS approves your application and changes your status.

Further, once your original nonimmigrant status expires, even though you will generally be allowed to remain in the U.S. while your extension of stay application is pending, you will not be deemed to be in any nonimmigrant status until such time as UCSIS approves your change of status application. For example, you may not continue to engage in employment during this period, even if your original nonimmigrant status would have allowed you to do so. Furthermore, if USCIS denies your change of status application, you will be considered to have been “out of status” for the entire period following the expiration of your original nonimmigrant status and you will be required to depart from the U.S. immediately upon notification of the denial of your application to change status.

Late Filing for a Change of Nonimmigrant Status:

If you are filing for a change of nonimmigrant status after your current status has already expired, you must prove that:

• The delay was due to extraordinary circumstances beyond your control;
  
  
• The length of the delay was reasonable;
  
  
• You have not done anything else to violate your nonimmigrant status (such as work without USCIS approval);
  
  
• You are still a nonimmigrant (i.e., you are not trying to become a permanent resident of the U.S., with limited exceptions); and
  
  
• You are not in formal proceedings to remove (deport) you from the country.

What qualifies as “circumstance beyond your control” is at the total discretion of the USCIS officer reviewing your application. Simply not getting around to filing on time will not be sufficient.

How To Check the Status of My Change of Status Application?

After you file your application, whether it is on Form I-129 or Form I-539, USCIS will mail you a receipt. This receipt will provide you with the number assigned to track your application, as well as the projected processing time. Your receipt will also give instructions about how you can use this receipt number to check on the status of your case.

Appealing a USCIS Decision Regarding your Change of Status:

If your application to change your nonimmigrant status is denied, you will receive a letter that will detail the reason(s) why the application was denied. There is no appeal from a denial of the change of status application part of both the Form I-539 and the Form I-129. However, you may submit a motion to reopen or a motion to reconsider with the same office that made the unfavorable decision. By filing these motions, you are asking the office to either reexamine or reconsider their decision. While both motions seek the same outcome they are very different in nature. A motion to reopen must state new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of the law or USCIS policy, and must further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.

Conclusion:

Each of the 40+ nonimmigrant visa categories has specific requirements and limits, including limits on length of stay in this country. If properly completed and filed your change of status application can open new doors for you in the U.S., If not, you can create ongoing problems for yourself.

For more information, contact VisaPro team, or if seeking a change of status based on an offer of employment, the employer that has offered you temporary employment may contact VisaPro’s experienced immigration attorneys.