Extension of Stay

Extension of stay or extension of status is the term used to describe the process where a foreign national can extend their nonimmigrant visa status in the U.S.

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 an extension of their status so they can remain in the U.S. longer than their current period of stay, usually evidenced by the date listed on their I-94 Arrival/Departure Record. The I-94 expiration can be found by checking the individual’s I-94 record at I-94 Official Website – Get Most Recent I-94 Request or their most recent I-797, Notice of Action Approval Notice from USCIS, which has an I-94 on the bottom of the Approval Notice.

Those in the U.S. in 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 extend their stay. The form must be filed by their employer.

Those in the U.S. in nonimmigrant visa categories which include B-1/B-2, H-4, L-2, O-3, P-4, etc. must use the Form I-539, Application To Extend or Change Nonimmigrant Status to extend their stay.

As a nonimmigrant you temporarily enter into the U.S. for a specific purpose such as business, study, or pleasure. When you enter the country as a nonimmigrant, you are issued an I-94 Arrival/Departure Record (electronically for most people).

The I-94 record tells you when you must leave the U.S. The expiration date of you stay is dictated by several factors including the type of visa category, the expiration date of your visa, the expiration date listed on an I-797 Approval Notice and/or the expiration date of you passport.

After you have entered the U.S., you can find your I-94 record at CBP’s I-94 website.

In order to extend your stay in the U.S., you must ask for permission from the United States Citizenship and Immigration Services (USCIS) before your authorized stay expires by filing the Form I-129 or the Form I-539, depending on which nonimmigrant status you hold.

OR

Check My Eligibility

You may be eligible to extend your stay 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; and
3. You have not committed any immigration violations that would make you ineligible for an extension/inadmissible
4. You have a valid passport

It’s important that the reason for the extension of stay otherwise comports with all immigration laws and that you have a lawful reason to extend your stay.

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

Some categories of nonimmigrants are not eligible for an “Extension of Stay” and must leave the U.S. before their status expires:

1.VWP-Visa Waiver Program (or the Guam Visa Waiver Program)

2.D- As a crewman

3.C- As an alien in transit or in transit without a visa

4.K– As a fiance or spouse of a U.S. citizen or dependent of a fiance or spouse

5.S- As an informant (and accompanying family) on terrorism or organized crime

It’s important to note that those in one of these categories may be able to extend their time in the U.S. by adjusting status to a green card holder, if eligible or in some cases, change their status.

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

E – International Traders and 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 are in 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

N- Parents and children of people who have been granted special immigrant status because their parents were employed by an international organization in the U.S.

Both the Form I-129 and Form I-539 may be filed online for certain categories. You can check your eligibility for online filing here: Forms Available to File Online | USCIS.

Being “out of status” or OOS means that you have failed to maintain your nonimmigrant status. This can occur if you have engaged in activities that are not allowed in your nonimmigrant status category or if you have overstayed your I-94 validity period. When someone “falls” out of status, it generally alludes to the actual time and incident at which your failure to maintain valid nonimmigrant status began.

As a foreign national in the U.S., you can fall out-of-status if you:

1. Stay beyond your authorized period of stay

2. Accept unauthorized employment

3. Take any other action that is not consistent with the terms of your admission. Examples include:

For nonimmigrant categories utilizing the Form I-129, Petition for Nonimmigrant Worker), it’s recommended that extensions of stay be filed at 180 days or 6 months before the expiration of stay.

Some individuals filing a Form I-129 Extension of Status with the same employer (H, E, L, O, P, R, TN, A-3, G-5 and I) can continue working for 240 days while the petition is pending. Filing a petition 6 months ahead of the expiration ensures the ability to continue working without interruption 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 days 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.

Once your status has expired, you are considered out of status. If your I-94 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 an extension 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 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.

If you and your immediate family members (spouse and unmarried children under 21) are in the U.S. with you, they may be able to file an extension of stay with you.

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

For those in dependent status, like H-4, TD, L-2, R-2, etc., a Form I-539 can also be filed independently to extend status. However, the extension of stay will be restricted to the authorized period of stay granted to the primary visa holder. 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 all in a nonimmigrant status that does not utilize the Form I-129, for example B-2 status, your spouse and unmarried children under 21 can file a single Form I-539 to extend your stay. Each dependent will need to have a Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, included with the Form I-539.

Those in F-1 or J-1 status are not required to file for extension of stay by filing the Form I-539 as explained elsewhere. This is because those in F-1 and J-1 status are not provided with I-94’s with a fixed expiration date. They are given “duration of status” notated “D/S”. Their stay in the U.S. is dictated by the length of their program of study or exchange program. For those in F-1 status, their status is governed by the Form I-20. For those in J-1 status, their status is governed by the Form DS-2019.

Those in F-1 status can maintain status by studying full-time at the school mentioned in the Form I-20 and making satisfactory academic progress.

Those in J-1 status can maintain status by studying, interning or working pursuant to the specific DS-2019.

F-1 status is generally extended when the I-20 is extended or a new I-20 is issued. The Form I-539 is not required for F-1 students to extend their status.

An I-20 can be extended if circumstances necessitate additional time for the student complete their program of study. Generally, this could be related to an academic reason or financial and medical circumstances.

At the completion of a program of study, the student can also get a new I-20 when their OPT and/or STEM OPT is authorized. The I-20 along with a valid employment authorization document (EAD) evidences that the student is still maintaining valid F-1 status.

Finally, once a student’s program is study is ending or the OPT or STEM OPT is expiring, the student can enroll in a new program of study and obtain a new I-20. The new program end date will dictate the expiration of the student’s status.

J-1 status is generally extended when the DS-2019 is extended or a new DS-2019 is issued. The Form I-539 is not required for J-1 students to extend their status. However, a J-1 extension is not possible for all J-1 categories.

You may be eligible to extend your stay on J-1 visa if you:

1. Are studying full-time at the school mentioned on your Form DS-2019 and making satisfactory academic progress and have adequate funding

2. You are a J-1 trainee and you are eligible for additional time to complete training (Trainees have a maximum of 12 months; 18 months if the training involves management training).

3. You are a J-1 intern and you eligible for additional time to complete the internship (interns have a maximum of 12 months).

4. You are a J-1 scholar, professor or teacher, you may be eligible for an extension of time to continue your activities in the U.S. for a maximum of 5 years

5. You are a J-1 physician, you may be eligible for an extension of time up to a maximum of 7 years

The F-2 or J-2 status of your dependents is automatically extended if and when your I-20 or DS-2019, respectively is extended. When you extend your I-20 or DS-2019, you can request that the document for your dependents be extended as well.

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.

Premium Processing is currently not available for Form I-539’s for Extensions of Stay.