Change Of Status

Change of status is the term used to describe the process where a foreign national can change their nonimmigrant status from one category to another category in the U.S. The change of status process allows nonimmigrants to change from one visa category to another without having to go back to a U.S. Consulate and obtain a new visa in the new visa category.

Those in the U.S. in valid nonimmigrant status, including but not limited to H-1, H-4, L-1, L-2, B-1/B-2, O, P, TN, etc. can request a change of status to another nonimmigrant status. A change of status can be requested if the purpose of their temporary stay in the U.S. has changed.

Those who wish to change to an employment-based nonimmigrant status like H, L-1, O, P, TN, R, etc., must use the Form I-129, Petition for Nonimmigrant Worker to change their status. The form must be filed by their intending employer.

Those who wish to change to a nonimmigrant visa category like B-1/B-2, F-1, J-1, H-4, L-2, O-3, P-4, etc. must use the Form I-539, Application To Extend or Change Nonimmigrant Status to change their status.

Note: Change of status should be distinguished from Adjustment of Status, which is the process of applying for lawful permanent resident status for those physically present in the U.S.

You may be eligible to change your status in the U.S. if:

1. You have lawfully entered into the U.S. with a nonimmigrant visa;
2. You have properly maintained your nonimmigrant visa status since your last entry;
3. You have not committed any immigration violations that would make you ineligible for a change of status and extension of stay and
4. You have a valid passport

The reason for the change of status should otherwise comport with all immigration laws and need to qualify for the change of status.

Additionally, it’s important to remember that a Change of Status request is often coupled with a request to extend your stay in the U.S.

Note: You must submit a Change of Status application BEFORE your current authorized stay expires. You must also keep your passport valid for your entire stay in the U.S.

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Check My Eligibility

Almost all visa categories are eligible to use the change of status process. These include:

1. Diplomatic and other government officials, and their dependants and employees on an A visa
2. Temporary visitors for business or pleasure in B visa status
3. Academic students on F-1 status and their dependants in F-2 status
4. Representatives to international organizations and their dependants and employees on G visa
5. Representatives of foreign media on I visa and their dependants
6. Exchange visitors on J-1 status and their dependants on J-2 status (as long as they are not subject to the 2 year home residency requirements under § 212(e))
7. Vocational students in M-1 status and their dependants on M-2 status
8. Temporary workers on H, L, O, P, Q, R, TN and their dependents

The following classes of visa do not allow a change of status from or to these categories:

D – As a crewman
C-1 – As an alien in transit or in transit without a visa
K-1/K-2 and K-3/K-4– As a fiancé(e) or spouse of a U.S. citizen or dependent
S – As an informant (and accompanying family) on terrorism or organized crime

Additionally, those who enter the U.S. under the Visa Waiver Program cannot change their status once they are in the U.S.

When you enter the U.S. as a nonimmigrant, you have been admitted under a particular visa category. Your activities in the U.S. must align with that specific visa category. If your visa status is expiring and purpose of your trip has changed or will change, you need to request permission from USCIS to request a change of your purpose.

The change of status process which allows nonimmigrants to request the change of their nonimmigrant visa status without having to leave the U.S. and visit the U.S. consulate, obtain a new visa and then return to the U.S.

Examples include:

a. You entered the U.S. with an F-1 visa to study in the U.S. You have been offered employment in the U.S. Your employer can file a change of status request through the Form I-129 to change your status from F-1 to H-1B, L-1, O-1, etc., depending on which category is most appropriate.

b. You entered the U.S. with an H-1B visa to work with a specific employer. You now wish to study full-time in the U.S. without continuing your employment. You can file a change of status to the F-1 student visa category by filing the Form I-539.

c. You entered the U.S. on B-2 in order to do some site-seeing. You have been presented with a lucrative business opportunity which will benefit your company abroad. You need to extend your stay in the U.S. to attend business meetings, etc. You can change your status to B-1 Business Visitor so you can partake in activities that are more aligned with B-1 visa.

If you begin taking part in activities that are prohibited under your current visa status without a proper change of status application being approved, you are no longer maintaining your nonimmigrant status and could be considered “out of status.” This may affect your ability to return to the U.S. in the future, change your status or obtain a green card through Adjustment of Status.

If you wish to change to any of the following categories of nonimmigrants, your employer will need to file the Form I-129, Petition for Nonimmigrant Worker, with any supporting documents:

E-1 – International Traders
E-2 – International Investors
H – Temporary workers
L – Intra company transferees
O – Aliens of Extraordinary Ability
P – Entertainers and Athletes
Q– Participants in International Exchange Programs
R – Religious workers
TN – Canadians and Mexicans under NAFTA

If you wish to change status to any of the following nonimmigrant categories, you should carefully read and complete Form I-539, Application to Extend/Change Nonimmigrant Status, and submit any supporting documents:

A – Diplomatic and other government officials, and their dependants and employees
B -Temporary visitors for business or pleasure
F – Academic students and their dependants
G – Representatives to international organizations and their dependants and employees
I – Representatives of foreign media and their dependants
J – Exchange visitors and their dependants
M – Vocational students and their dependants

Note: Your application and correct fee should be mailed to the United Sates Citizenship and Immigration Services (USCIS) Lockbox based on their filing instructions.

If you and your immediate family members/dependents (spouse and unmarried children under 21) are in the U.S. with you, they may be able to file a change of status as well.

If you are changing to an employment-based nonimmigrant status like H, L, O, TN, etc., your employer must file the Form I-129, Petition for Alien Worker to change your status. Your family members who are in the U.S. may concurrently file the Form I-539, Application to Extend/Change Nonimmigrant Status, and submit any required supporting documents to change their status to the appropriate dependent visa status. When filed together, USCIS generally processes the applications concurrently or together.

Dependents can also file the Form I-539 independently to change their status. If there are multiple family members, one person can file the Form I-539 with the other family members being included via the Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status

If you and your family members are changing to a nonimmigrant status that utilizes the Form I-539, for example F-1 and F-2 status, you will file the Form I-539 to change your status to F-1 and your spouse and/or unmarried children under 21 can file another Form I-539/Form I-539A to change their status to F-2.

There are 2 important dates and/or milestones to remember when filing a change of status:

1. The Change of Status should be filed when you determine that you need to change to a different nonimmigrant category
2. The change of Status should be filed before your current status expires or ends.

It’s important to note that in most cases, you cannot begin the activities allowed under the new status until the change of status has been approved (There are limited exceptions).

For nonimmigrant categories utilizing the Form I-129, Petition for Nonimmigrant Worker), it’s generally recommended that the change of status be filed at 180 days or 6 months before the expected start date of employment or the event, unless restricted from doing so (For example, for the Cap H-1B, the earliest start date for the H-1B is October 1 of the fiscal year in question and the H-1B cannot be filed earlier than April 1, which is 180 days before October 1).

Filing a petition 6 months ahead of the expiration ensures that you will obtain a timely approval in the event there are case processing delays or a Request for Evidence is sent by USCIS.

For the Form I-539, Application to Extend or Change Status, USCIS recommends that you file your Extension of Stay application at least 45-60 days before the intended start date and before your authorized stay expires.

For both the Form I-129 and Form I-539, USCIS Service Center must receive your application by the day your authorized stay expires in order to be considered timely filed.

If you apply for Change of Status after your authorized stay has expired, you will start accruing unlawful presence. If you leave the U.S. after accruing 180 days of unlawful presence, you may be barred from the U.S. for 3 years. If you leave after 365 days of unlawful presence, you may be barred form the U.S. for 10 years.

USCIS will accept a late-filed extension of stay request if you can show that the delay in filing was out of your control. This is commonly known as a “Nunc Pro Tunc” filing.

If you are late in filing for a change of status and your authorized stay has already expired, you must prove that:

1. The delay was due to extraordinary circumstances beyond your control
2. The length of the delay was reasonable
3. You have not done anything else to violate your nonimmigrant status (such as work without United States Citizenship and Immigration Services approval)
4. You are still a nonimmigrant. (This means that you are not trying to become a permanent resident of the U.S. There are some exceptions.)
5. You are not in formal proceedings to remove or deport you from the country

Note: For those in F-1 or J-1 status, their I-94 records generally are notated as “D/S”, meaning duration of status. Those in F-1 or J-1 who stay beyond their authorized period of stay are out of status but they do not immediately accrue unlawful presence.

There are several ways you can check the status of the application:

1. Check out VisaPro’s My US Visa Status tool
2. Check on U.S. Citizenship & Immigration Services’ website at Case Status Online – Case Status Search (uscis.gov)
3. Log into your MyUSCIS account

If your application to change your nonimmigrant status is denied, you will receive a letter that will tell you why the application was denied. Once you receive your denial, you have several options:

1. File the Form I-290B, Notice of Appeal or Motion
   You can file a Motion to Reopen or a Motion to Reconsider the denial decision. A Motion to Reopen is filed when you have new evidence to present to USCIS about your eligibility. A Motion to Reconsider is filed if you believe that USCIS applied the law or policy improperly or incorrectly. Generally, the Form I-290B must be filed within 33 days of the receipt of the decision.
2. File the Form I-290B, Notice of Appeal or Motion
   You can file a Motion to Appeal a decision regarding denial to the Administrative Appeals Office. Generally, applicants will first file a Motion to Reopen or Reconsider and then file an Appeal if the Motion is denied.
3. If you have maintained valid underlying nonimmigrant status and, if you continue to be eligible, you can try to re-file the Change of Status application after it is denied.
4. If you are unable to re-file the Change of Status request, you may be still be eligible to obtain a new visa in the new visa category at the U.S. consulate/embassy. Once you have obtained a visa, you can return to the U.S. to engage in activities as per your new visa status.

Premium Processing is an optional service provided by USCIS where an additional fee is paid to expedite the processing of certain USCIS petitions, including the Form I-129 petition and certain visa categories under the Form I-539. This service guarantees that USCIS will provide a response (Approval, Request for Evidence or Notice of Intent to deny) within a set number of days.

For I-129 Petitions in almost all employment categories, Premium Processing is available and USCIS will issue a response within 15 business days.

For the I-539 Application, Premium Processing is currently available for Change of Status to F-1, F-2, M-1, M-2 and J-1, J-2 status and USCIS will issue a response within 30 business days.

Applicants may request Premium Processing by filing a completed Form I-907, Request for Premium Processing Service along with the Form I-129 or Form I-539 or it can be submitted after the form has been filed.

The Immigration and Nationality Act (INA) governs the admission of all people to the U.S. For the part of the law concerning changing nonimmigrant status, please see INA § 248. The applicable regulations are found in the Code of Federal Regulations (CFR) at 8 CFR § 248.