Extending Nonimmigrant Status In The U.S.

Introduction

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. In many instances, you may be able to continue doing the same types of activities by applying for an extension of your period of nonimmigrant stay in the U.S.

Let’s take a look at U.S. Citizenship and Immigration Service (USCIS) extension requirements and see how they may apply to your situation.

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.

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Eligibility Criteria To Extend Your Status In The U.S.:

Foreign nationals who are in the U.S. in valid nonimmigrant status are eligible to apply for an extension of status in the U.S. if:

• S/he was lawfully admitted into the U.S. as a nonimmigrant; and
• S/he has not committed any act that would make him/her ineligible to receive an immigration benefit; and
• There is no other factor that, in the sole discretion of a USCIS officer, which would warrant requiring the applicant 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 the applicant should obtain a new visa prior to being readmitted into the U.S.); and
• The application for an extension of stay is submitted before the expiration date on the Form I-94 (There are certain very limited circumstances under which USCIS will excuse a late filing of such an application.)

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Who Is Not Eligible To Extend Their Status In The U.S.?

Not all nonimmigrants in the U.S. are permitted to extend their nonimmigrant status. If someone is admitted in any of the following nonimmigrant categories, an extension of status would not be permitted:

• 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.

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How To Extend Your Nonimmigrant Status?

There are two main forms that are used to extend 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 extend t heir employment-based nonimmigrant status will need to use the Form I-129.  Those who wish to extend their visitor, or dependent status will use the Form I-539.

Form I-129 and the Employment-Based Categories:
For those in the following employment visa classifications, the employer must submit a Form I-129, Petition for Nonimmigrant Worker, on the applicant’s behalf in order to extend the stay:

• 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 and their essential support personnel)
• Q-1 (International Cultural Exchange)
• R-1 (Religious Workers)
• TN (NAFTA Professionals)

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 dependent 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.

Form I-539 and Non-employment Based Categories:

Those in the following nonimmigrant categories should file a Form I-539 to extend status:

• 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:  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 the application.

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Extension of Nonimmigrant Status For Spouse And Child(ren):

If an employer files a Form I-129, Petition for Alien Worker on behalf of an 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 extend their status simultaneously or afterwards. They must also submit any required supporting documents to extend their status.

If an individual is filing Form I-539 to extend their own status, the spouse and any unmarried children under the age of 21 can be included in the same application as long as everyone is in the same nonimmigrant category.

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When Should You Apply?

The timing of the application may be dependent on the visa category and the amount of time needed to complete your activities.  Most employment-based petitions can be filed up to 6 months in advance.  For most other applications, USCIS recommends applying at least 60 days prior to the I-94 expiration. However, because it cannot always determine that when someone may need additional time in the U.S. to complete the reason for their entry, the application to extend status can be filed up until the date the I-94 expires (an application is deemed timely filed as long as it is received by USCIS on or before the expiration date on the I-94).

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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 must examine the applicant’s situation, status, and the reasons for the request for extension of stay to decide whether to grant the application and the validity period of the stay. USCIS will not grant an extension where circumstances suggest an extension may be inappropriate.

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Late Filing For An Extension of Nonimmigrant Status

USCIS will not approve a late-filed extension of stay 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 the application. Simply not getting around to filing on time or being ignorant about the need to file an extension of status application will not be sufficient.

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Appealing A USCIS Decision Regarding Your Extension of Status:

If the application to extend nonimmigrant status is denied, USCIS will send a letter that will detail the reason(s) why the application was denied. There is no “appeal” from a denial of the extension 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.

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Conclusion

Each of the 40+ nonimmigrant visa categories have 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 in the U.S. If not, it can create significant problems.

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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