We understand that you may wish to remain in the U.S. for a period longer than originally planned. Nonimmigrant visas are issued to foreign nationals who intend to remain in the U.S. for, depending on the particular nonimmigrant classification, a temporary or otherwise less than permanent period of time. You may be able to continue doing the same types of activities for which you were initially admitted by applying for an extension of your period of nonimmigrant stay in the U.S. Let us analyze the U.S. Citizenship and Immigration Service (USCIS) extension requirements and see how they may apply to your situation.
Reasons To Extend Your Nonimmigrant Status
A nonimmigrant is temporarily admitted to the United States for a specific purpose such as business, study, or pleasure. When you entered the country as a nonimmigrant, a U.S. immigration inspector should have examined your passport and visa and then given you a Form I-94 (Arrival/Departure Record). This record should tell you (in the lower right-hand corner) when you must leave the United States. You can prove you did not violate U.S. laws by turning in your Form I-94 to the proper authorities when you leave the country. If you want to extend your stay in the United States you must ask for permission from the USCIS before your authorized stay expires. Proof that you are willing to obey U.S. immigration laws will be important if you want to travel to the United States as an immigrant or nonimmigrant in the future. If you break any U.S. immigration laws, you may also become subject to removal (deportation).
NOTE: It is your I-94/I-94W that shows how long you are permitted to remain in the U.S., not your nonimmigrant visa (if a visa was required in connection with your application for admission). A visa only shows when and how many times you can come and seek admission to the U.S. from abroad pursuant to the particular classification listed on your visa.
Eligibility Criteria To Extend Your Status In The U.S.:
You may apply for an extension of stay in the U.S. if:
- You were lawfully admitted into the U.S. as a nonimmigrant; and
- You have not committed any act that would make you ineligible to receive an immigration benefit; and
- There is no other factor that, in the sole discretion of a USCIS officer, would warrant requiring you to depart the U.S. prior to making a reentry pursuant to the same 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 an extension of stay before the expiration date on your Form I-94 (There are certain very limited circumstances under which USCIS will excuse a late filing of such an application.)
NOTE: Your passport must be valid for your entire requested period of stay in the U.S.
Who Is Not Eligible To Extend Their Status In The U.S.?
If you were admitted in any of the following nonimmigrant categories, as shown on your I-94, you will not be able to extend your stay in the U.S.:
- C (Aliens in Transit)
- D (Crewmen)
- K-1 or K-2 (Fiancé(e) or Dependent of Fiancé(e))
- S (Witness or Informant beyond a total of three years)
- Q-2 (Irish Peace Process Cultural and Training Program Visitor beyond a total of three years or beyond a total of two years if initially admitted on or after December 10, 2004)
- TWOV (Transit without Visa)
- WT or WB (Visa Waiver Program, you would have been issued a green Form I-94W)
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 Extend Your Nonimmigrant Status?
How you apply for an extension of stay depends upon your current nonimmigrant status:
If you are in one of the following employment-related categories, your employer should file a Form I-129, Petition for Nonimmigrant Worker, before your Form I-94 expires:
- 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)
NOTE: If your employer files a Form I-129 to extend your status, and your spouse and/or unmarried children under age 21 also want to extend their status, they will need to file a Form I-539, Application to Extend/Change Nonimmigrant Status. While your dependents cannot be included on your I-129 they can all be included on one I-539.
Tip: It is best to file the I-129 and I-539 together, so that they may be adjudicated on or about the same time. 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 the forms together.
Non-employment Based Categories:
If you are in the following nonimmigrant categories, you should file a Form I-539 to extend your stay:
- A-3 (Attendants, Servants, Personal Employees of Diplomatic and other Government Officials and Immediate Family)
- B-1 and B-2 (Visitors for Business or Pleasure)
- E (Treaty Traders and Investors dependents)
- G-5 (Attendants, Servants, Personal Employees of Foreign Government Officials and Immediate Family)
- H-4 (Temporary Worker dependents)
- K-3 and K-4 (Spouse of U.S. Citizen and Minor Child Accompanying/Following to Join)
- L-2 (Intracompany Transferee Dependents)
- M (Vocational Students and Dependents)
- N (Parents and Children of Certain People who Have Been Granted Special Immigrant Status)
- NATO-7 (Attendants, Servants, Personal Employees of 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)
- All “V” categories (Certain Second-Preference Beneficiaries)
- TD (TN dependents)
NOTE: As with employment-based dependents, all family members (husband/wife and unmarried children under 21) in the same category currently can be included on one Form I-539. Remember to submit all the required supporting documents with your application.
Extension of Nonimmigrant Status For Spouse And Child(ren):
If your employer files a Form I-129, Petition for Alien Worker, for you, then your spouse and/or child(ren) must carefully read and complete a Form I-539, Application to Extend/Change Nonimmigrant Status, and submit any required supporting documents to extend their stay. It is best to submit both forms at the same time.
If you are filing Form I-539 for your own extension, you may include your spouse and any unmarried children under the age of 21 in your application if you are all in the same nonimmigrant category. You may also include your spouse or children in your application if they were given derivative nonimmigrant status. This 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.
When Should You Apply?
The USCIS recommends you apply no later than 60 days prior to your I-94 expiring. However, because you cannot always determine that you may need additional time in the U.S. to complete the reason for your entry, you may apply up until the date your I-94 expires (an application is deemed timely filed as long as it is received by USCIS on or before the expiration date on your I-94). You may also apply up to six months before your I-94 expires to have your stay extended.
If You Are Eligible For An Extension of Status, And File On Time, Will Your Application Be Approved?
An extension of stay is not automatic. USCIS will look at your situation, your status, the reasons you want to extend your stay, and will decide whether to grant your application. If the application is granted, USCIS will also decide how long to extend your stay. USCIS will not grant an extension where circumstances suggest an extension may be inappropriate.
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 status expires, and if you have not violated the terms of your status, and if you meet the basic eligibility requirements, then you may continue your previously approved activities in the U.S., including previously authorized work, for a period of up to 240 days, until USCIS makes a decision on your application, or until the reason for your requested extension has been accomplished – whichever comes first.
Further, the USCIS takes the position that once your original nonimmigrant status expires, even though you generally will 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 they approve your extension of stay. If your application for extension is denied after your previously approved stay has already expired and while you are still in the U.S., you will be considered to have been “out of status” as of the date your period of stay expired (the expiration date on your I-94), and will be required to cease employment (if such employment was authorized) and depart from the U.S. immediately. In addition, any nonimmigrant visa in your passport granted in connection with such classification becomes void at the time you become an “overstay,” the end of the period of authorized stay.
NOTE: Once your visa has been voided because you violated your immigration status you will be required to submit any new visa application at a U.S. consulate in your home country; you may not file in a third country, except in rare instances as determined by the State Department.
What If Your Current Status Expires Before Applying For An Extension of Status?
If your status expired before you filed an application with the USCIS to extend your stay in the U.S. 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, the USCIS will not extend your nonimmigrant stay.
NOTE: Staying longer than the period of time for which you were granted admission may also have a negative effect on your ability to receive other immigration 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.
Late Filing For An Extension of Nonimmigrant Status
If you are late filing an extension and your authorized stay 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 (this means you are not trying to become a permanent resident of the United States, with certain limited exceptions.); and
- You are not in formal proceedings to be removed (deported) you from the U.S.
How To Check The Status of Your Extension of Status Application?
After you have submitted your application for extension of stay USCIS will mail you a receipt. This receipt will provide a 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 on our website. The status of most applications can be checked online or by telephone. While the receipt notice will give a projected processing time, the actual processing times will vary and may have to check the status of you application several times before you get an answer.
Appealing A USCIS Decision Regarding Your Extension of Status
If your application to extend your stay is denied, you will receive a letter that will tell you why the application was denied. In most cases you will not be allowed to appeal an adverse decision to a higher authority. 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 may ask the office to reexamine or reconsider their decision. A motion to reopen must state the 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 law or USCIS policy, and 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 extension of status application can open new doors for you in the U.S. If not, you can create significant ongoing problems for yourself by remaining in the United States.
For more information, contact the VisaPro legal team. If you are seeking an extension of status based on an offer of employment, suggest the employer contact VisaPro’s experienced immigration attorneys.
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