Change or Extend your Nonimmigrant Status I-539

If you meet the requirements, you may be eligible to change or extend your immigration status while you are in the U.S.

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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 you 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:

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 PhD 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:

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 to 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 (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 an 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 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.

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She was perfect! It was such a luck to have Julia Greenberg referred to me by my acquaintance. She is the most caring and helpful attorney I have ever worked with. She is very professional and knowledgeable in the immigration law, and she gave me great advice! I appreciate most that she is always available by phone or returns missed calls shortly – this is something that many attorneys in NYC do not do or have their assistants do who never give the correct answer. I approached Julia to help me prepare for my citizenship interview since I had, frankly speaking, not an easy case, and she did the best  job I could expect. I could not imagine how my interview would have gone without her; her support was significant! If I ever have a question about any immigration matter I would definitely ask Julia for help again. Awesome

Anya Shapkina  on July 6, 2017

Julia Greenberg helps me during the interview process and advises me on the process followed. She is very supportive and handles. She impressed me not only with the professionalism, but also with the art of communication as an outstanding attorney.She is quick to respond to any question that I have. Julia has helped me every step of the way with my case. Thank you!!

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Julia is very professional, competent and knows how to get the best deal for her clients. What we appreciated about her service was that she always answered our calls or got back to us in a very short amount of time. We had a very stressful issue with the officer but Julia was able resolve it and have our case successfully processed the same day. We could have not done it without her. She is a smart lawyer and a great negotiator with a wonderful personality. Hire Julia Greenberg if you want to get a real result!

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