Change of Status

iStock_000000356750_L11-300x199Is it possible to apply for a change of status to a different nonimmigrant category?
For many classes of nonimmigrant visas it is possible to file for a change of status form one immigration category to another so long as you properly file your application and supporting documentation prior to the expiration of your current authorized period of stay.1 The I-94 card that was issued to you when you were admitted to the United States or when you obtained your status will normally dictate the period you are authorized to remain in the U.S.

How do I know if I am eligible to file for a change of status?

You may apply to change your immigration status in the United States if:

• You were lawfully admitted into the United States as a nonimmigrant;

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

• There is no other factor that requires you to depart the United States prior to changing status (for example, a USCIS officer may determine that you should obtain a new visa prior changing your status); and

• You submit an application for an change of status before the expiration date on your Form I-94 card.

Which visa categories may apply for a change of status?

• A-3 (Attendants, Servants, Personal Employees of Diplomatic and Government Officials and Immediate Family)
• B-1 and B-2 (Visitors for Business or Pleasure)
• E (Treaty Traders and Investors Dependents)
• G (Foreign Government Officials and Certain Immediate Family)
• H-4 (Temporary Worker Dependents)
• K-3 and K-4 (Spouse of U.S. Citizen and Minor Child Accompanying/ Following to Join)
• L-2 (Intracompany Transferee Dependents)
• M (Vocational 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)
• O-3 (Aliens With Extraordinary Ability Dependents)
• P-4 (Athletes and Entertainer Dependents)
• R-2 (Religious Worker Dependents)
• TD (TN Dependents)
• E-1 or E-2 (Treaty Traders and Investors)
• H-1B, H-2A, H-2B, or H-3 (Temporary Workers)
• L-1A or L-1B (Intracompany Transferee)
• O-1 or O-2 (Aliens with Extraordinary Ability)
• P-1, P-2, or P-3 (Athletes and Entertainers)
• Q-1 (International Cultural Exchange Visitors)
• R-1 (Religious Workers)
• TN-1 or TN-2 (Canadians and Mexicans under the North American Free Trade Agreement (NAFTA))
How do I apply for a change of status?
Depending on your specific visa category you will need to file for a change of status using either Form I-539 or Form I-129. In addition, it is extremely important to submit sufficient documentary evidence in order to better assure approval. All decisions concerning the change of status are discretionary. We recommend you obtain the advice of a competent immigration attorney before proceeding.

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The following visa categories may not be extended:

• C (Alien in Transit)
• D (Crewman)
• K-1 or K-2 (Fiancé(e) or Dependent of Fiancé(e))
• S (Witness or Informant beyond a total of 3 years)
• TWOV (Transit Without Visa)
• WT or WB (Visa Waiver Program—you would have been issued a green Form I-94W)

May I remain in the United States while awaiting a decision on my change of status?

If your application/petition is filed and received by USCIS prior to the expiration of your current status, and if you have not violated the terms of your status you may remain in the United States while awaiting a decision. In addition, you may continue your previously approved activities in the United States (including previously authorized work) ONLY until the expiration of that particular nonimmigrant status. After that you may remain in the U.S. while awaiting a decision, but you may not start the new activities permitted by the status you are applying for until you receive an approval from USCIS.

If your application for a change of status is denied you will be considered “out of status” as of the date your original period of stay expires and you must depart the United States immediately.

1 There are certain very limited circumstances under which USCIS will excuse a late submission of your application to change status. If your status expired before you filed an application with USCIS to change 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 fall out of status, except in certain limited circumstances beyond your control, you cannot change your nonimmigrant status. Staying longer than the period for which you were granted admission may also negatively affect your ability to obtain other benefits or to return to the United States later. If you fall out of status, we recommend that you leave the United States as soon as possible to limit the possible impact on your ability to return to the United States in the future.