APPLICATIONS WITHIN THE UNITED STATES
EXTENSION OF STAY OR CHANGE OF STATUS
A foreign individual, after being admitted to and while staying in the United States on a nonimmigrant status, may be required by business, personal or other reasons to remain in the United States beyond his or her current authorized stay. Depending on the circumstances, the individual may extend his or her stay in the same nonimmigrant classification or change his or her status to another nonimmigrant classification.
The term “extension of stay” is defined as the process of extending the length of time a visa holder is authorized to stay in the United States, when approved by USCIS. While basically seeking the same purpose of prolonging authorized stay in the United States, “change of status” differs from “extension of stay” in that the former entails changing from one nonimmigrant visa to another nonimmigrant visa while in the United States.
Procedures and Requirements
The procedure and requirements for extension of stay/change of status vary depending on the nonimmigrant category. The application must be filed with USCIS on the appropriate USCIS form. In general, the application must be filed before the applicant’s authorized status expires, which is the date on the Form I-94, Arrival-Departure Record.
If the nonimmigrant is holding B visitor visa and wishes to extend his or her stay as a visitor, he or she must use Form I-539, Application to Extend/Change Nonimmigrant Status. The application must be supported by documentation justifying the additional period of stay requested. Documents to establish continuing intent to stay only for a temporary period of time, strong ties to the home country, and financial support must also be submitted.
If the nonimmigrant visa holder wishes to change status to another nonimmigrant status, the application must be filed on Form I-539 if the new nonimmigrant category sought is any of the following: A, F, G, I, J, M, and N. If the nonimmigrant is seeking to work in the United States in a temporary employment under E, H, L, O, P, Q, R, and TN classification, the application must be filed on Form I-129, Petition for Nonimmigrant Worker. The Form I-129 petition is filed by the U.S. employer, but the nonimmigrant beneficiary may also do the change of status application in the same form even if only the petitioner is signing the form.
To extend authorized stay under any nonimmigrant category, the same form used to apply for the previous extension or change of status must be used.
Authorized Stay vs. Authorized Status
Authorized stay is the period of time a nonimmigrant is allowed to remain in the United States. Beyond that period, a nonimmigrant begins to accrue unlawful presence if he or she remains in the United States without authorization. In general, “authorized stay” refers to the date stamped on the nonimmigrant’s Form I-94, which is the date by which the nonimmigrant must leave the United States. Because the Form I-94 also determines the status of the nonimmigrant, the date indicated on the Form I-94 also refers to the period of authorized status of the nonimmigrant.
Where the nonimmigrant has filed a timely (i.e., before the Form I-94 expired) application for extension of stay or change of status, the period during which the application is pending continues the nonimmigrant’s authorized stay in the United States. However, it does not extend the alien’s period of authorized status.
The distinction is important for at least two reasons relevant to this discussion. First, the nonimmigrant does not accrue unlawful presence after the date on his or her Form I-94 has expired if the period of stay beyond such date is authorized. As discussed above, the period of stay beyond the Form I-94 expiration date is authorized stay if the nonimmigrant has filed a timely application for change of status or extension of stay. The nonimmigrant will accrue unlawful presence if the application for change of status or extension of stay is denied by USCIS beginning the date after the denial is issued.
It is also important to remember that for purposes of applying for extension of stay or change of status, an application is considered timely if it is filed with USCIS on or before the period of authorized status expires as indicated on the Form I-94. An application filed after the Form I-94 validity date, even if filed during a period of authorized stay, does not make the application timely. Thus, where a nonimmigrant files a timely request for extension of stay and subsequently applies for a change of status while the previous application is pending but after the expiration of his or her Form I-94, he or she is no longer eligible for the requested change of status. If the first application is denied, the subsequent application filed beyond the period of authorized status will not stop the accrual of unlawful presence.
Authorized Stay vs. Visa Validity
The distinction between authorized stay and visa validity is also a common source of confusion. People sometimes think that they cannot remain in the United States beyond the validity date of their visa stamp on their passport even if they have been given authorized stay beyond that period. The period from the visa issuance date to the expiration date as shown on the visa stamp is the visa validity period. It is the length of time the visa can be used for travel to the U.S. and seek admission at a U.S. port-of- entry for an authorized purpose. As long as the visa is valid, even if the remaining validity period is less than six months, the visa holder may request permission to enter the United States.
Once admitted to the United States, the visa validity has no bearing on the authorized stay granted to the visa holder. A nonimmigrant can stay in the United States for the duration of his or her authorized stay, even if the visa validity has already expired.
Persons Not Eligible for Extension of Stay and/or Change of Status
Persons admitted in any of the following nonimmigrant categories are not eligible to apply for extension of stay or change of status and must depart the United States before the expiration of their Form I-94:
• C (Alien in Transit)
• D (Crewman)
• K-1 or K-2 (Fiance(e) or Dependent of Fiance(e))
• S (Witness or Informant)
• TWOV (Transit without Visa)
• WT or WB (Entry under the Visa Waiver Program)
The following categories are subject to certain restrictions concerning their ability to request for change of status:
• J-1 (Exchange Visitor) subject to the 2-year foreign residence requirement, unless a prior waiver is obtained
• M-1 (Vocational Student) cannot change status to F-1 or any H classification if the vocational training helped him or her qualify for the H classification
Presumption of Misrepresentation: The 30/60 Day Rule
A B nonimmigrant applying for change of status should be aware that such an application can raise questions about his or her true intention at the time he or she applied for B visa or at the time of seeking admission as a visitor at a U.S. port of entry. An application for change of status filed within a short span of time from entry may raise suspicion that the B nonimmigrant had the preconceived intent to engage in the activity for which the change of status is sought.
Determining whether a misrepresentation has been made is a difficult task. This is why the Department of State developed the 30/60 Day Rule. This rule provides for a presumption that a person misrepresented his or her intention in seeking a visitor visa or entry on visitor status if he or she violates such status within 30 days of entry by:
• Actively seeking unauthorized employment and, subsequently, becomes engaged in such employment;
• Enrolling in a program of academic study without the benefit of the appropriate change of status;
• Marrying and taking up permanent residence; or
• Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such change or adjustment.
If a person initiates such violation of status more than 30 days but less than 60 days after entry into the United Unites, no presumption arises. However, if the foreign affairs officer has reasonable belief that a misrepresentation was committed, the person must be given an opportunity to present countervailing evidence. If the evidence presented is not persuasive, the foreign affairs officer is directed to submit a comprehensive report to the Advisory Opinions Division for the rendering of an advisory opinion.
The Department of State Foreign Affairs Manual further instructs foreign affairs officers to bring to the attention of the appropriate USCIS office information indicating that a person who has applied to USCIS for adjustment or change of status may have misrepresented his or her true intentions at the time of visa application or entry into the United States.
Since misrepresentation or preconceived intent to engage in activities not authorized for B visas is a violation of the terms of the B visa or admission as a B nonimmigrant, such could lead to the denial of an application for change of status.
Departure While the Application is Pending
It has been USCIS’ long-standing policy that an applicant’s departure from the United States after an application for extension of stay or change of status has been filed is considered an abandonment of the application. As a result, the application will be denied by USCIS.
If the application is made in a Form I-129 petition filed on behalf of the applicant, USCIS may grant the petition but deny the accompanying application for extension of stay or change of status, requiring the applicant to apply for a visa abroad. In any case, an applicant whose application is denied based on abandonment may still be able to obtain a visa through consular processing.