Effects of Change of Status

If a nonimmigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status.

For instance, a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his/her behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his/her country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

There are important considerations that should be taken into account when applying for the change of status. The application must be filed before the expiration of the alien’s current status. He/she should not pursue the new activity until the application is approved. It is advisable to maintain his/her non-immigrant status while waiting for the decision on the change of status application.

Traveling outside the U.S. while the application for a change of status is pending would be deemed an abandonment of the application. But in the case of an application to change status to H-1B, the approval of the H-1B petition will be valid and can be used to apply for an H-1B visa at a U.S. consulate abroad.

This is where the difference between ˜visa’ and ˜status’ comes into play.

A visa is an official travel document issued by a U.S. consulate overseas allowing a foreign national to apply for admission into the U.S. It is the computerized document with the picture of the foreign national placed on his/her passport. There are several types of visa classifications depending upon the specific purpose for entering the U.S. The visa is like a ˜key to the door’ to enter the U.S.

Once a foreign national is legally admitted into the U.S., it is the date stamped on the I-94 admission/departure card that governs his/her legal immigration status and the duration of his/her authorized stay in the U.S. So, even if the visa remains valid, if the date stamped on the I-94 card has expired, the person becomes out of status.

If the change of status is approved, the foreign national remains legally in status in the U.S. even if his/her visa has expired or is of a different classification. For example, the person may still have an unexpired F-1 (student) visa on her passport while being on H (temporary worker) status in the U.S. It is his status in the U.S. that determines the legality of his/her authorized stay in the U.S. and not the visa. The new validity dates of his/her status would be indicated on the I-797 approval notice and I-94 card.

If the change of status is denied and the applicant is maintaining a valid non-immigrant status, he/she will be allowed to retain and continue in that original status until its validity date. Otherwise, the applicant would just have to leave the U.S. and apply for the new visa in a U.S. consulate abroad and re-enter under a new non-immigrant classification.

The applicant should bear in mind that overstaying beyond 180 days without status would preclude the person from returning to the U.S. for a period of three (3) years once the person goes out of the country. Being out of status for one year or more will prevent the person from re-entering the U.S. for a period of ten (10) years if the person travels outside and tries to return to the U.S.

If that person with an approved change of status intends to travel abroad, it would be necessary that he/she obtains a new visa from a U.S. consulate abroad reflecting his/her newly approved non-immigrant classification in order to re-enter the U.S.

These are the exceptions: F (student), J (exchange visitor), M (vocational student), or Q (international exchange program participant) non-immigrants are allowed to travel for 30 or fewer days to Canada, Mexico or adjacent lands except Cuba, and to reapply for admission to the U.S. presenting their I-94 and I-20 student eligibility verification form for students or DS-2019 (formerly IAP 66) for exchange visitors.

Another exception involves Canadian citizens who are exempt from visa requirement except those seeking E-1/E-1 (Treaty Investor) or K (Fiancé) status. They need only show their I-94 and I-797 approval forms.