Almost all foreign nationals coming to the U.S. must have a visa to enter. Generally, nonimmigrant visas are issued to foreign nationals who intend to remain in the (U.S.) for a temporary period of time. There are more than 40 nonimmigrant visa categories, each used for a different, but very specific purpose. The different visa categories generally permit foreign nationals to come to the U.S. for a variety of different activities, including to work, visit or study.
Nonimmigrants, however, often find themselves in a situation where the circumstances under which they originally have to the U.S. have changed. US immigration regulations generally require that you formally change your nonimmigrant status before you may lawfully begin to engage in the new activity(ies).
What Is A “Nonimmigrant”?
A nonimmigrant is an individual that enters the U.S. temporarily for a specific purpose such as business, study, temporary employment or pleasure. Those who arrive at a US port of entry (airport, seaport, or land border) are generally inspected by a U.S. immigration officer and, as part of the inspection process, the officer assigns the foreign national a nonimmigrant visa category according to the intended purpose of the visit. The classification is generally dictated by the relevant nonimmigrant visa which stamped in the passport (except if your Canadian and a visa stamp is not required). Once the inspection is complete, the foreign national is admitted in to the U.S. in nonimmigrant status.
Eligibility Criteria To Change Your Status In The U.S.:
Foreign nationals who are in the U.S. in valid nonimmigrant status are eligible to apply for change of status in the U.S. if:
- S/he was lawfully admitted into the U.S.;
- S/he has not committed any act that would make him/her ineligible to receive an immigration benefit;
- There are no other factors that (in the sole discretion of USCIS) which would warrant requiring the applicant 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 the applicant should obtain a new visa prior to being readmitted into the U.S.); and
- The application for a change of status is submitted before the expiration date on the 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: The applicant must also have a passport that is valid for the 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 someone is admitted in any of the following nonimmigrant categories, a change of status would not be permitted:
- 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 stay expires.
How To Change Your Nonimmigrant Status?
There are two main forms that are used to change nonimmigrant status- the Form I-129, Petition for Nonimmigrant Worker or the Form I-539, Application to Extend/Change Nonimmigrant Status. Generally, those who wish to change to employment-based nonimmigrant status will need to use the Form I-129. Those who wish to change to status to that of visitor, student or exchange visitor will use the Form I-539.
Form I-129 And The 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 will need to file a Form I-129, Petition for Nonimmigrant Worker, on the applicant’s behalf. This form serves two purposes. It is used to establish that:
- The “Beneficiary” will be performing the type of work for the petitioner that is covered by the nonimmigrant classification sought, and
- The “Beneficiary” meets the requirements for changing status in the U.S.
The “Beneficiary” cannot begin employment in the new classification until USCIS approves the change of status. The employment visa categories covered are:
- E-1 or E-2 (Treaty Traders and Investors) or E-3 (Australian Specialty Occupation Workers)
- 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 and their essential support personnel)
- Q-1 (International Cultural Exchange)
- R-1 (Religious Workers)
- TN (NAFTA Professionals)
Form I-539 And Non-employment Based Categories:
An individual wanting to change status to one of the following non-employment based nonimmigrant categories do not need a “Petitioner.” The Form I-539, Application to Extend/Change Nonimmigrant Status serves two purposes. It is used to establish that:
- The “Applicant” is eligible for the nonimmigrant classification being sought, and
- The “Applicant” meets the requirements for changing status in the U.S.
The applicant may not be able to begin the activities that form the basis of the change of nonimmigrant status until USCIS approves the application. The non-employment visa categories covered are:
- A (Diplomatic and Other Government Officials, Immediate Family members, and Employees)
- B-1 and B-2 (Visitors for Business or Pleasure)
- E-1, E-2 (Treaty Traders and Investors Dependents) and E-3 (Australian Specialty Occupation Worker Dependents)
- F (Academic Students and dependents)
- G (Foreign Government Officials and Certain Immediate Family members)
- H-4 (H classification Temporary Worker dependents)
- L-2 (L-1 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 (O-1/O-2 Aliens with Extraordinary Ability dependents)
- P-4 (P Athletes and Entertainer dependents)
- R-2 (R-1 Religious Worker dependents)
- TD (TN dependents)
Change of Nonimmigrant Status For Spouse And Child And The Form I-539:
If an employer files a Form I-129, Petition for Alien Worker, on behalf a prospective employee, then the spouse and child(ren) under the age of 21 who are also in the U.S. in valid nonimmigrant status may also file Form I-539, Application to Extend/Change Nonimmigrant Status to change their status simultaneously or afterwards. They must also submit any required supporting documents to change to a new nonimmigrant category.
If an individual who is changing their own status using Form I-539 may include the spouse and any unmarried children under the age of 21 on the same application as long as all individuals on the application are changing to the same nonimmigrant status.
What If Your Current Status Expires Before Applying For A Change of Status?
If an applicant’s current status expired before the change of status is filed, or if s/he has otherwise violated the terms of his/her nonimmigrant status (e.g. working without authorization, attending school full time without authorization) then that person is “out of status”. Those who are “out of status”, except in certain limited instances related to circumstances beyond the applicant’s control, cannot apply for a change of status. Individuals in this situation would generally be required to obtain a visa at US Consulate abroad in the appropriate visa category before being able to return to the U.S
Being out of status in the U.S. may also have a negative effect on your ability to obtain 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. If you have been in the U.S. for more than 180 days after your I-94 has expired, speak with an Immigration Attorney regarding unlawful presence and the possibility of the 3-year or 10-year bar.
When Should You Apply For Change Of Status?
Waiting to the last minute is never a good idea. We recommend that those who wish to change their status apply at least 2 months before their status expires. Please note that, no matter what, the application to change nonimmigrant status should be received by the USCIS before the I-94 expiration, or in the case of F-1/M-1/J-1 students, before the end of their program.
If You Are Eligible For A Change Of Status And File On Time, Will Your Application Be Approved?
There is no guarantee that USCIS will approve a change of status application, even if the applicant has met all the requirements. USCIS must examine the applicant’s situation, current status, the reasons for the change of status, and, if applicable, the reasons the applicant did not apply for this kind of visa before initially coming to the U.S. Then only can USCIS make a decision on whether or not to grant the change of status and decide the validity period of the stay. 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.
Late Filing For A Change of Nonimmigrant Status:
USCIS will not approve a late-filed change of status application unless:
- The delay was due to extraordinary circumstances beyond the applicant’s/beneficiary’s control;
- The length of the delay was reasonable;
- The Applicant/Beneficiary has not done anything else to violate your nonimmigrant status (such as work without USCIS approval);
- The Applicant/Beneficiary is still a nonimmigrant (i.e., you are not trying to become a permanent resident of the U.S., with limited exceptions); and
- The Applicant/Beneficiary in not in formal proceedings to remove (deport) him/her 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 or being ignorant about the need to file change of status application will not be sufficient.
Appealing A USCIS Decision Regarding Your Change Of Status:
If the application to change nonimmigrant status is denied, USCIS will send a 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, a motion to reopen or a motion to reconsider may be submitted with the same office that made the unfavorable decision. In filing a motion to reopen and/or reconsider, it must be shown that there is additional evidence (in existence at the time of filing) that would change the outcome or argue that USCIS has applied the law incorrectly.
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 a change of status application can open new doors in the U.S., If not, it can create very serious problems.
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.
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