I AM A NONIMMIGRANT. HOW DO I EXTEND MY 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 or otherwise less than permanent period of time. Prior to your admission to the US, an immigration officer at a US Port of Entry, examined your immigration documentation and, in most cases, issued you a Form I-94 or I-94W, Arrival/Departure Record when you were admitted. The I-94 or I-94W shows your nonimmigrant status and the length of time you can legally remain in the US pursuant to that admission.

Note that the I-94 or I-94W shows how long you are permitted to remain in the US and not your nonimmigrant visa, if a visa was required for you. A visa only shows when and how many times you can come and seek admission to the US from abroad pursuant to the particular classification listed on your visa.

The immigration authorities understand that you may wish to remain in the US for a period longer than originally planned.

How do I know if I am eligible to extend my stay in the US?

You may apply for an extension of stay in the US if:

• You were lawfully admitted into the US as a nonimmigrant; 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 an immigration officer, would warrant requiring you to depart the US prior to making a reentry pursuant to the same 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 an extension of stay before the expiration date on your Form I-94. 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 US.

How do I know if I am not eligible to extend my stay in eligible to extend my stay in the US?

If you were admitted in any of the following nonimmigrant categories shown on your I-94, you will not be able to extend your stay in the US:

C (Alien in Transit)

D (Crewman)

K1 Fiancee or K-2 Dependent of Fiancee

S (Witness or Informant beyond a total of three years)

Q2 (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)

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 apply to extend my stay in the US?

How you apply for an extension of stay depends upon your nonimmigrant status:

Employment-Based Categories:

If you are in one of the following employment-related categories, your employer should file an I-129 petition for nonimmigrant worker before your Form I-94 expires:

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 Visitors)

R1 (Religious Workers)

TN (Canadians and Mexicans under NAFTA)

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

Please note: If your employer files I-129 petition to extend your status, and your husband or wife and/or unmarried children under age 21 also want to extend their status, they will need to file an I-539 application to extend or change nonimmigrant status. They can all be included on one I-539 application. It is best to file the I-129 and I-539 together, so that they may be adjudicated on or about the same time.

Other Categories:

If you are in the following nonimmigrant categories, you should file a I-539 application to extend your stay:

A3 (Attendants, Servants, Personal Employees of Diplomatic and other Government Officials and Immediate Family)

B1 and B2 (Visitors for Business or Tourism)

E (Treaty Traders and Investors dependents)

G5 (Attendants, Servants, Personal Employees of Foreign Government Officials and Immediate Family)

H4 (Temporary Worker dependents)

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

L2 (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)

O3 (Aliens with Extraordinary Ability Dependents)

P4 (Athletes and Entertainer Dependents)

R2 (Religious Worker Dependents)

All “V” categories (Certain Second-Preference Beneficiaries)

TD (TN Dependents)

Please note: All family members (husband or wife and unmarried children under 21) in the same category currently can be included on one Form I-539.

Can I get an extension of stay if my status already expired?

If your status expired before you filed an application with USCIS to extend your stay in the US 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 may not be able to extend your nonimmigrant stay. 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 to return to the US at a later time.

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

Our 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. You may also apply up to six months before your I-94 expires to have your stay extended.

If I am eligible for an extension of stay and file on time, will my stay be extended?

An extension of stay is not automatic. The USCIS will look at your situation, your status, the reasons you want to extend your stay, and will decide whether to grant your application; if the USCIS grants it, they will also decide how long they will extend your stay.

What if I file on time but USCIS doesn’t make a decision before my I-94 expires?

If the USCIS received your application before your status expires, and if you have not violated the terms of your status, and you meet the basic eligibility requirements, then you may continue your previously approved activities in the US, including previously authorized work, for a period of up to 240 days, or until the USCIS makes a decision on your application or until the reason for your requested extension has been accomplished – whichever comes first.

Further, once your original nonimmigrant status expires, even though you generally will 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 extension of stay.

If your application for extension is denied after your previously approved stay has already expired and while you are still in the US, you will be considered to have been “out of status” as of the date your period of stay expired, and will be required to cease employment, (if such employment was authorized and depart from the US immediately upon denial of your application. In addition, any nonimmigrant visa in your passport granted in connection with such classification becomes void at the end of the period of authorized
stay. Once your visa is void, you will be required to submit any new visa application at a US consulate in your home country (not a third country, except in rare instances as determined by the State Department).

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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