Changing Non-Immigrant Status

A non-immigrant may acquire another non-immigrant status without leaving the U.S. This is known as change of non-immigrant status. The most common example is the case of a tourist who wants to study (F-1) or work (H-1B) in the U.S.

During the pendency of the application for change of status, he/she may remain in the U.S. even if the application is not adjudicated before the last period of his/her authorized stay.

There are certain important points to note before filing the application. It must be submitted before the current status expires as indicated on the I-94, unless there are extraordinary circumstances beyond his/her control that prevented the timely filing. And he/she must be eligible for the requested classification.

When adjudicating a change of status, the United States Citizenship and Immigration Services (USCIS) closely looks into the existence of a preconceived intent of the applicant. Is the applicant intending to merely prolong his/her stay? Did the applicant have another purpose when he/she initially applied for a visa, thus circumventing the visa processing rules of the U.S. embassy or consulate?

The applicant has the burden of proving to the USCIS that his/her intent to acquire the new status occurred only after the purpose for the original status/classification has already been fulfilled. In the case of a B-2 tourist, it means that his/her original purpose was to just visit and tour the U.S. for a short period of time and not to stay indefinitely for another purpose such as to work or to study.

Some visitors come to the U.S. as tourists because in some U.S. embassies abroad, this is the most expeditious way to get in. However, when the intent is to come to the U.S. to visit various schools and colleges in order to study in the U.S., he/she should inform the consular officer that he/she is an “intending student” so that a notation can be made as a “B-2 prospective student”. This will prevent a denial of the change of status from B-2 to F-1 when the applicant finally decides to enroll and study in the U.S.

If the tourist did not disclose his/her intent to visit schools, a change of status may still be granted, provided that the applicant can show that there is no preconceived intent to change the status upon arrival in the U.S. This can be shown by a change of plans or circumstances after the original purpose of the visit has been fulfilled.

In such a case, it is useful for the applicant to execute an affidavit explaining such change of circumstances. The applicant also needs to provide proof of financial ability to support his/her extended stay under the new status, ties to the home country, and other relevant information such as activities undertaken since arriving in the U.S.

The alien’s activities since his/her admission will also be looked into by the USCIS in deciding whether to grant a change of status.

In determining whether the alien had a preconceived intent, the USCIS follows a so-called 30/60 day rule. This means that the alien is presumed to have a preconceived intent if less than 30 days elapsed between his/her arrival in the U.S. and the filing of the change of status. If the application is filed between 30 and 60 days, the presumption no longer exists but a finding of misrepresentation may still be issued. If 60 days elapsed, the alien is relatively safe.

Since all non-immigrants are presumed intending immigrants, except for H-1 and L-1, it is important that all the factors and circumstances leading to a change of status are discussed with counsel to minimize possible problems.