CHANGE OR EXTEND YOUR NONIMMIGRANT STATUS I-539

Can you change your nonimmigrant status?

It depends on what your original status was! So let’s say you are a nonimmigrant, someone who is not intending to stay permanently in the United States. Now, let’s say that something changes in your life while you’re in the U.S., and now you want to change the reason you want to stay temporarily in the  U.S., or even extend your stay. What happens next? For example, you came in as a tourist and decided that you really want to go to college here in the United States. Never fear, it is likely possible to make this happen! If you want to change the reason for your visit or even your employer (if you have a Nonimmigrant Status that allows you to work already), you must submit a request to USCIS before the expiration date of your original status (your status and expiration date are in the bottom right-hand corner of your I-94). To continue with this example, it is important that you do not enroll in school, before USCIS approves your request to change, because that would look like fraud. At worst, that could lead to deportation and/or a temporary (or permanent) bar on returning.

Are You Eligible? Usually, nonimmigrants who are lawfully admitted into the U.S. are eligible to alter their status so long as they came in lawfully, have not violated the terms of their status, or committed a crime that would affect their eligibility. As long as you submit your forms in a timely and complete way, and your reason for change or extension is valid, then you are likely to be approved! Which form you will use to apply to change your status, will depend on what type of nonimmigrant status you are attempting to change to:

If you are attempting to change to a nonimmigrant status that permits employment your future employer will have to file and I-129 on your behalf:  I-129 Petition for a Nonimmigrant Worker

If you are attempting to change to a nonimmigrant status that is not employment-oriented (such as for a student visa), then you can personally file the form without an employer: I-539, Application to Extend/Change Nonimmigrant Status

Can you extend your nonimmigrant status? The honest answer is, it depends! Some visas do not allow for extensions, so obviously in that case the answer would be no. However, if, for example, you came in on a student visa to get a Ph.D. at an American university, and you realize your research is taking a lot longer than you thought it would, an extension is probably a good idea! As with the application to change your nonimmigrant status, the type of nonimmigrant status you wish to change to will determine which form you will need to use:

If you are attempting to extend a nonimmigrant status that is employment oriented (such as an L-1A or and H-1B), then your employer will have to file the following form on your behalf: I-129 Petition for a Nonimmigrant Worker

If you are attempting to extend a nonimmigrant status that is not employment-oriented (such as a F-1 Student Visa), then generally you can file this extension request yourself, using: I-539, Application to Extend/Change Nonimmigrant Status

Restrictions on Changing or Extending your Status. Unfortunately, not all visas allow you to alter your status. You cannot change or extend your status if you came to the U.S. under one of the following categories:

D visa ( Visa Waiver Program Crew member )

C visa (immediate and continuous transit through the U.S.)

TWOV (in transit through the United States without a visa)

WT or WB (Visa Waiver Program — you would have been issued a green I-94W)

K visa (fiancé(e) visa)

S visa (witness or informant in a criminal investigation or prosecution)

Additionally, both the M Visa and the J-1 Visa have limitations on changing your status.

As a vocational student with an M Visa, you cannot change your status to any of the following:

F-1  (academic student)

H Visa (of any kind), i.e. Temporary Worker (for more info click here) if your vocational schooling prepared you or qualified you for the position

You have to be careful changing from a J-1 international exchange visitor because it has several special rules. As a J-1 international exchange visitor, you CANNOT change your status if:

• You were allowed into the U.S. for graduate medical training (except if you have a special waiver)
• You must satisfy the foreign residence requirements as an exchange visitor (unless you have a special waiver)- if you don’t have a waiver, you can apply to alter your status only to that of a diplomatic/government official (A visa) or a representative to an international organization (G visa)

No Form Required, If you came in on a B-1 Visa to do some business and now you want to stay to travel a little, you do not need to change anything as long as you still leave the U.S. by your original expiration date. This might happen if your job ends a couple of weeks before your visa does, and you want to use that opportunity to travel a little. Go ahead!

Becoming a Student in the United States. In order to study in the U.S. as a nonimmigrant, you generally must (with some exceptions discussed below) have a nonimmigrant student visa (usually an F or M visa). These visas allow you to study full-time in the United States. Most students use an F visa unless they attend vocational training (or another non-academic training), which requires an M visa. To change your nonimmigrant status to have a student status (such as F-1), you have to satisfy the requirements for foreign students:

• you will have to be an actual prospective student, who has been accepted by an institution recognized by the Attorney General; and,
• you (or other person(s) or a business can promise on your behalf) have to be able to financially sustain yourself for at least twelve months (usually this would be your parents writing a letter of support and including some financial documents); and,
• you must intend only to come to the U.S. for a defined period of time to study.  There are a few ways you can prove you intend to leave the U.S. when you are done. For example, you can give your parents’ address if that is where you plan to go after school or show that you have strong ties to your community back in your home country (for example: a promised job).

If you already are in the U.S. on a different nonimmigrant visa, you can generally still become a student! There are even some nonimmigrant visas that do not require you to change your nonimmigrant status (i.e. fill out more paperwork), if you want to become a student.

These visas include:

A visa (foreign officials and their family members)

 E visa (treaty investment, for more information click here)

G visa (representative of international organization like OxFam and their families)

H visa (employment visa, for more information click here)

I visa (foreign press and their family)

J visa (research scholars, professors, and exchange visitors and their families)

L visa (intracompany transferee, for more information click here)

F and M visas (you do have to apply for a change of status when you switch to post-secondary school, i.e. college or university)

If you want to learn more about student visas generally, you should see our student visa page, available here.

YOU HAVE TO BE CAREFUL OF THE 90-DAY RULE:

When you apply for any kind of visa, in applying, you are assuring the U.S. government that the reason you are applying for any specific visa type is to come to the U.S. to engage in activities that are consistent with the visa’s type and purpose. For example, if you apply for a B-1 business visa, then you are telling the government that your true purpose for coming to the U.S. is business. The 90-day rule is that USCIS will presume that you purposely lied about your intentions if you do something inconsistent with your visa type, within 90 days of coming to the U.S.  In other words, if you do one of the following things within 90 days of entering the U.S., USCIS is going to be suspicious that you lied to them about your intentions. Which may trigger a fraud investigation against you. Activities or behavior that could violate or be inconsistent with your visa include:

1. Working when your visa does not allow it,
2. Enrolling in school when your visa does not allow it,
3. Marrying a U.S. citizen or lawful permanent resident (someone with a green card) when your visa expressly says you plan to leave at the end of your stay. Basically, this would be like you are trying to set up a permanent life in the U.S. when you said you would not), and/or
4. Undertaking any other activity that requires a change or adjustment of status without actually getting that change or adjustment (or before it is processed).

This does not mean you cannot change your mind! If you come for business and realize that you want to learn a lot more about American business and in fact want to get an MBA, that is totally fine! However, you have to be careful when you apply. If you change your mind too soon after you arrive, USCIS will presume that you came into the U.S. with a different intention than what you told the government. As of Fall 2017, the magic number is 91 days. If you wait for at least 91 days of being in the U.S. on your current status, before changing your status to a new one, USCIS will not automatically presume that you originally had a different intention than the original visa you applied for.

So This Leaves the Question, When Should You Apply to Change or Extend Your Status? You can apply up to six months before your I-94 expires, but do not leave it until the last minute! USCIS recommends applying no later than sixty days (or about two months) before your I-94 expires. You are allowed to apply after that two-month line, but it is not advisable.

The immigration system can be complicated and your best chance of success is to work with an experienced immigration attorney. Please get in touch with us to help you through the process.