In order to qualify to apply for a change of nonimmigrant status, a nonimmigrant alien must be in lawful nonimmigrant status. This means that the applicant has not overstayed the departure date shown on his or her arrival/departure record (form I-94), nor engaged in unauthorized employment or done anything else in violation of his or her nonimmigrant status.
Depending upon the nonimmigrant category into which the applicant seeks a change of status, two different application forms are used. For those who seek a change of nonimmigrant status into E, H, L, O, or P classification, form I-129 (with the appropriate supplement) is used. This is a combined petition and change of status application. For those seeking all other nonimmigrant classifications, an application for change of nonimmigrant status is made on form I-539. Spouses and children of applicants for change of status into E, H, L, O, or P classification must file their own application, using form I-539.
These applications should be filed with the C.I.S. regional service center having jurisdiction over the place where the applicant is living.
The C.I.S. follows the "30/60 day rule" in adjudicating most applications. If a person applies for a change of nonimmigrant status within 30 days of arriving in the U.S., the application is presumed to be fraudulent. The reason for this is that they doubt that a person who applies for a change of status within 30 days of entry was truthful when he or she stated their reason for coming to the U.S. when they originally entered. This presumption may be rebutted, but applicants should be aware of it.
Applicants who apply more than 60 days after entry are presumed to be acting in good faith. Applicants who apply between 30 and 60 days are suspect, but not presumptively fraudulent.
The C.I.S. has recently spoken to the issue of an applicant's status when the C.I.S. has not acted on their application for change of nonimmigrant status by the time the applicant's I-94 expires. To read the full policy memorandum, click here.
