I AM A NONIMMIGRANT. HOW DO I CHANGE TO ANOTHER NONIMMIGRANT VISA STATUS IN THE UNITED STATES?

Nonimmigrant visas are issued to foreign citizens who intend to remain in the United States for, depending on the particular nonimmigrant classification, a temporary period or otherwise less than permanent period of time. There are more than 40 nonimmigrant US visa categories; each is used for a different, but very specific purpose. For example, some authorize temporary employment in the US; others permit tourists to visit, students to study, and diplomats to serve their home country’s interests.

The immigration authorities understand that plans can change. If your original reason for coming to the US changes, you may be required to change your nonimmigrant status to a different one before you may lawfully begin to engage in the activities you want to pursue.

How do I know if I am eligible to change my status in the US?

You may apply to change your status in the US if you:

• Were lawfully admitted into the US; and

• You have not committed any act that would make you ineligible to receive an immigration benefit; and

• There is no other factor that, in the sole discretion of US Citizenship and Immigration Services (USCIS), would warrant requiring you to depart the US prior to making a reentry pursuant to a different classification. For example, an immigration officer may determine for any number of reasons that you should obtain a new visa prior to being readmitted into the US; and

• You submit an application for a change of status before the expiration date on your Form I-94, Arrival-Departure Record. There are certain very limited circumstances under which USCIS will excuse a late filing of such an application.

Please note: Your passport must be valid for your entire requested period of stay in the new nonimmigrant classification in the US.

How do I know if I am not eligible to change my status in eligible to change my status in the US?

If you were admitted in any of the following nonimmigrant categories, you will not be able to change your nonimmigrant status:

C (Aliens in Transit)

D (Crewmen)

K1 Fiancee or K2 Dependent of Fiancee

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

J1 (Exchange Visitor subject to the 2 year foreign residence requirement)

M1 (Vocational student changing to F1 or H – if the M training helped him or her qualify for the H classification)

Q2 (Irish Peace Process Cultural and Training Program Participant – subject to two-year
foreign residency requirement)

Please note: If you are in any of the above categories, you must depart the US on or before the date your I-94 expires.

How do I change my nonimmigrant status?

How you apply depends on the nonimmigrant status to which you want to change –

Employment-Based Categories:

If you want to change your status to one of the following employment-based nonimmigrant categories, your prospective employer should file a I-129 petition for nonimmigrant worker on your behalf before your Form I-94 expires. This form serves two purposes: it is used to establish that (1) you will be performing the type of work covered by the new nonimmigrant classification for the petitioner, and (2) you personally meet the requirements for changing your status. You cannot begin work in the new classification until the USCIS approves the change of status.

E1 Treaty Trader or E2 Treaty Investor

H1B, H2A, H2B or H3 (Temporary Workers)

L1A or L1B (Intracompany Transferee)

O1 or O2 (Aliens with Extraordinary Ability)

P1, P2, or P3 (Athletes and Entertainers)

Q1 (International Cultural Exchange)

R1 (Religious Workers)

TN (NAFTA Canadians and Mexicans)

Each of the above categories has specific requirements and limits, including those on length of stay in this country.

Please note: If your prospective employer files an I-129 petition to change your status, and your husband or wife and/or unmarried children under age 21 also want to change status to remain as your dependents, they will need to file an I-539 application to extend/change nonimmigrant status.

Note that they can all be included on one I-539. It is best to file the I-129 and I-539 forms 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 forms together.

Other Categories:

If you wish to change your status to one of the following nonimmigrant categories, you should file Form I-539:

A (Diplomatic and Other Government Officials, Immediate Family members, and Employees)

B1 and B2 (Visitors for Business or Pleasure)

E (Treaty Traders and Investors dependents)

F (Academic Students and dependents)

G (Foreign Government Officials and Certain Immediate Family members)

H4 (Temporary Worker dependents)

K3 Spouse of US Citizen and K4 Minor Child Accompanying or Following to Join

L2 (Intracompany 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)

O3 (Aliens with Extraordinary Ability dependents)

P4 (Athletes and Entertainer dependents)

R2 (Religious Worker dependents)

TD (TN dependents)

Please note: All family members (husband or wife and unmarried children under 21) who are requesting the exact same change in nonimmigrant category can be included on one I-539 application.

Can I get a change of status if my status already expired?

If your status expired before you filed an application with USCIS to change your status, or if you have otherwise violated the terms of your status, such as by working without authorization, then you are out of status. If you have fallen out of status, except in certain limited instances related to circumstances beyond your control, the USCIS cannot change your status. Staying longer than the period of time for which you were granted admission may also have a negative effect on your ability to get other benefits or to return to the US at a later time.

When should I file, and how long will it take to process my application?

The USCIS processing times can vary. You can check the current processing times at http://bccvisalaw.com/ins-processing.php. You should apply no later than 60 days prior to your I-94 expiring to change your status. You may also apply up to six months before your I-94 expires to have your status changed.

If I am eligible for a change of status, and file on time, will my application be approved?

A change in status is not automatic. The USCIS will look at your situation, your current status, the reasons you want to change your status, and the reasons you did not apply for this kind of visa before you entered, and will decide whether to grant your application and, if the USCIS grants it, how long the USCIS will extend your stay in the new nonimmigrant status. The 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.

When can I engage in the activities for which the new nonimmigrant status I am applying for is required?

You may not do so until the USCIS approves your application for change of status.

What if I file on time but USCIS does not make a decision before my I-94 expires?

If the USCIS receive your application before your nonimmigrant status expires (or, in exceptional cases, the USCIS excuses filing after your status expires due to circumstances beyond your control), and if you have not violated the terms of your status and you meet the basic eligibility requirements, then you may remain in the US until the USCIS makes a decision on your application. But remember, you cannot start the activities allowed by the status you are applying for until the USCIS approves your application and change your status. Further, once your original nonimmigrant status expires, even though you will generally be allowed to remain in the US while your extension of stay application is pending. You will not be deemed to be in any nonimmigrant status until such time as the USCIS may approve your change of status application. Therefore, you may not, for example, engage in employment during this period, even if your original nonimmigrant status would have allowed you to do so. If the USCIS denies your change of status application, you will be considered to have been “out of status” for the entire period following the expiration of your original nonimmigrant status and will be required to depart from the US immediately upon notification of such denial of status.

THE INFORMATION ON THIS WEBSITE IS NOT TO BE CONSIDERED LEGAL ADVICE. SUCH INFORMATION IS INTENDED TO EDUCATE MEMBERS OF THE PUBLIC GENERALLY AND IS NOT INTENDED TO PROVIDE SOLUTIONS TO INDIVIDUAL PROBLEMS. READERS ARE CAUTIONED NOT TO ATTEMPT TO SOLVE INDIVIDUAL PROBLEMS ON THE BASIS OF INFORMATION CONTAINED HEREIN AND ARE STRONGLY ADVISED TO SEEK ADVICE FROM AN EXPERIENCED IMMIGRATION LAWYER REGARDING SPECIFIC CASE SITUATIONS.

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