Eligibility for Change of Nonimmigrant Status
February 27, 2013
A common example is an alien who enters the United States as a tourist who later on decides to study or work. Another common example is an alien who enters the U.S. on a student visa and subsequently obtains a job offer in the U.S.
The alien should be able to establish that he did not misrepresent his intentions when he obtained a visa at the U.S. embassy abroad. Generally, “preconceived intent” to circumvent normal visa procedures abroad will be presumed by the USCIS if the visitor applies for change of status within 30 days after entry. The application for change of nonimmigrant status will most likely be denied.
An alien must meet certain requirements to be eligible for change of status. The alien must have been a nonimmigrant visa holder lawfully admitted into the United States. There are, however, certain aliens whose current nonimmigrant status does not permit them to change status. These are aliens who are in transit through the U.S. without a visa (TWOV), and holders of C (transit), D(crewman), K(fiancé[e]) or S (witness) visas.
Also, J-1 visa holders subject to the two-year foreign residency requirement may not change status unless they obtain a waiver. A vocational student (M-1) cannot change status to an academic student (F-1) or to H (temporary work) status if the qualifications for the position were obtained through the vocational training received in the U.S.
Another requirement the alien must meet to be eligible to change status is to maintain current status. The nonimmigrant must not violate the conditions of his nonimmigrant visa. For instance, an alien on a tourist visa who files Form I-539 to change status to student, may not start classes prior to its approval. An alien on student visa who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved.
The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied.
The alien must not have committed any crime or any other act which will bar him from changing nonimmigrant status.
The Form I-539 to change status should be filed before the expiration of the period of authorized stay as indicated in the Form I-94. It is recommended that the alien apply no later than 60 days before the authorized period expires. The USCIS accepts late filing only in rare situations where “extraordinary circumstances” beyond the alien’s control prevented him from timely filing the application.
The alien is out of status when the period on the Form I-94 expires even if application to change nonimmigrant status is pending. If the application to change status is approved, the approval retroacts to the date when the Form I-94 expired.
In case of a denial, specific request must be made in the application to change status to allow the alien to stay in the U.S. under his original status. A denial of the application to change status may not be appealed. The alien may file a motion to reopen or reconsider his application.
If the date on the Form I-94 already expired, the alien’s attorney may request a period of 15 to 30 days to leave the U.S; otherwise, the alien may be required to leave the U.S. immediately.