Immigration Information FAQ: Changing nonimmigrant status

FAQ: Changing nonimmigrant status

Q:	Why Do You Need to Ask to Change to a New Nonimmigrant Category?

A nonimmigrant temporarily enters the United States for a specific purpose such as business, study, temporary employment or pleasure. When you are admitted into the United States, a U.S. official will assign you a nonimmigrant category according to the purpose of your visit. If you want to change the purpose of your visit while you are in the United States, then you or, in some cases, your employer must ask the Immigration and Naturalization Service to change your nonimmigrant status. For instance, if you arrived here as a tourist, but want to become a student, you must submit an application to change your status with the C.I.S.. If you do not apply to change your nonimmigrant status, you will be breaking U.S. immigration laws. Proof that you are willing to obey U.S. laws may be important if you want to travel to the United States as an immigrant or nonimmigrant in the future. You may also become subject to removal (deportation) if you break U.S. immigration law.

Q:	Where Can I Find the Law?

A:	The Immigration and Nationality Act (INA) governs the admission of all people to the United States. For the part of the law concerning changing nonimmigrant status, please see INA § 248. The applicable regulations are found in the Code of Federal Regulations (CFR) at 8 CFR § 248 .

Q:	How Do I Apply?

For the following categories of nonimmigrants, your employer should carefully read and file an C.I.S. Form I-129 (Petition for Nonimmigrant Worker) and any required supporting documentation:

E - International Traders and Investors
H - Temporary Workers
L - Intracompany Transferees
O - Aliens of Extraordinary Ability
P - Entertainers and Athletes
Q - Participants in International Exchange Programs
R - Religious Workers
TN - Canadians and Mexicans Under NAFTA

If you are in the following nonimmigrant categories, you should carefully read and complete C.I.S. Form I-539 (Application to Extend/Change Nonimmigrant Status) and submit any required supporting documents:

A - Diplomatic and other government officials, and their families and employees.
B - Temporary visitors for business or pleasure.
F - Academic Students and their families
G - Representatives to international organizations and their families and employees.
I - Representatives of foreign media and their families
J - Exchange Visitors and their families
M - Vocational Students and their families
N - Parents and children of the people who have been granted special immigrant status because their parents were employed by an international organization in the United States.

The application and correct fee should be mailed to the C.I.S. Service Center that serves the area where you are temporarily staying. If your nonimmigrant category is work-related, then the application and correct fee should be mailed to the C.I.S. Service Center that serves the area where you will work. Forms are available by calling 1-800-870-3676, or by submitting a request through our forms by mail system. For information on fees, please see C.I.S. filing fees, fee waiver request procedures, and the C.I.S. fee waiver policy memo. Click here for information on C.I.S. offices.

Q:	How Do My Spouse and Child Apply to Change Their Nonimmigrant Status?

If your employer files C.I.S. Form I-129 (Petition for Alien Worker) for you, then your spouse and child must carefully read and complete C.I.S. Form I-539 (Application to Extend/Change Nonimmigrant Status) and submit any required supporting documents to change to a new nonimmigrant category. It is best to submit both forms at the same time.

You may include your spouse and any unmarried children under the age of 21 in your C.I.S. Form I-539 application if you are all in the same nonimmigrant category, or if your spouse or children were given derivative nonimmigrant status. Derivative nonimmigrant status means that your spouse and children were given nonimmigrant visas based on your nonimmigrant status. For instance, if a student is given an F-1 "Academic Student" visa, then the spouse and child are given F-2 "Spouse and Child of an Academic Student" visas.

Q:	When Should I Apply?

We recommend that you apply as soon as you determine that you need to change to a different nonimmigrant category. Please note, you must apply to change your nonimmigrant category before you current nonimmigrant status expires. Also, do not start new employment without first being approved for your change of status. The date your status expires can be found in the lower right-hand corner of your C.I.S. Form I-94 (Arrival-Departure Record). You should have received an C.I.S. Form I-94 when you legally entered the United States. (For more information, please see, How Do I Get an Arrival-Departure Record?.)

Q:	What If I Am Late Filing for a Change of Nonimmigrant Status?

If you are late filing for a change of nonimmigrant status and your current status has already expired, you must prove that:

The delay was due to extraordinary circumstances beyond your control;
The length of the delay was reasonable;
You have not done anything else to violate your nonimmigrant status (such as work without C.I.S. approval);
You are still a nonimmigrant (This means that you are not trying to become a permanent resident of the United States. There are some exceptions.); and
You are not in formal proceedings to remove (deport) you from the country.

Q:	What happens if the C.I.S. does not make a decision on my application before my I-94 expires?

The C.I.S. has recently published a policy memo that explains that a person who files a good faith application for change of nonimmigrant status, prior to the expiration date on their I-94, may remain lawfully in the U.S. until the C.I.S. makes a decision on their case. The time between the expiration date of the I-94 and the date the C.I.S. makes a decision will not be counted as time in "unlawful status".

Q:	How Can I Find Out About the Status of My Application?

A:	Contact the C.I.S. office that received your application. You should be prepared to provide the C.I.S. staff with specific information about your application.

Q:	How Can I Appeal an C.I.S. Decision Regarding My Change of Status?

If your application to change you nonimmigrant status is denied, you will receive a letter that will tell you why the application was denied. You will not be allowed to appeal a negative decision to a higher authority. However, you may submit a motion to reopen or a motion to reconsider with the same office that made the unfavorable decision. By filing these motions, you are asking the office to either reexamine or reconsider their decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or C.I.S. policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.