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:
(Aliens in Transit)
- D (Crewmen)
- K-1 or
(Fiancé(e) or Dependent of Fiancé(e))
(Spouse of U.S. Citizen and Minor Child Accompanying/Following to Join)
- S (Witness
- 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)
(but only Exchange Visitor subject to the two-year foreign residence requirement,
with certain exceptions)
(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.
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:
- You will be performing the type of work for the petitioner that is covered
by the new nonimmigrant classification sought, and
- 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
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
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
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.
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.