Change of Status
To supplement our guide on US Visa types, we are adding related articles like this one on change of status. If you live in Montana, North Dakota or Wyoming and you needed information about change of status, please keep reading. Alternatively, if you know you need help, contact us.
If you read the other articles or already understand about status, you know that when you admitted to the United States using the visa that you secured CBP gave you status here in the US. The status is the right to remain in the United States to pursue the activities allowed by the visa. United States Citizenship and Immigration Services (USCIS) is aware that people respond to opportunities or change their minds and need a new status. If you decide that you want to do something different than authorized by USCIS, you need a new status.
Change of Status Examples
An example or two will illustrate the concept. If someone arrived in B-2 tourist status, and while they were here learned of an opportunity to enroll in school, he or she would need a new status, F-1 to enroll in school. Similarly, if CBP admitted you in J-1 to work on the three month work and travel program, if after it was over they wish to remain in the United States as a tourist, you would need a new status B-2 to remain in the United States.
Eligibility to Change Status
If you are considering a change of status, the first issue to address is whether you are eligible to change of status. You may only change to another status if you are lawfully admitted to the United States. Besides being lawfully present, you must not have broken any immigration laws like engaged in authorized employment. Your case must also lend itself to USCIS exercising favorable discretion. USCIS may decide that rather than granting your change of status request, you should return to your home country and apply for a new visa there. If you meet these requirements, you must make sure that USCIS receives your application before your current status expires.
Ineligible Statuses For Change Of Status
While you may have met all the requirements described in the paragraph above, you still may be ineligible for change of status. USCIS restricts the statuses that you can change from. For example, if you have the following statuses, you cannot submit a change of status request: C, transit, D, crewmen, K, fiancé, or WT, Visa Waiver Program. This is not an exhaustive list. Some of the rarely used statuses are also ineligible. If someone in one of these categories submitted an application to change status to the USCIS, it would be denied. The applicant would also lose the application fee.
Change of Status Process
How you go about changing your status depends upon status you already have, and the status you wish to receive. If the reason that you are changing status is that an employer has offered you employment, the employer will handle the process for changing your status when it files the employment petition. You must provide your employer with evidence that you are in status and that you meet the requirements for the position. Examples are statuses allowing work for which the employer must petition E1, treaty trader, E-2 treaty investor, H-1B, H-2A, H-2B or H-3 temporary workers, O, extraordinary ability aliens, P, athletes and entertainers, R-1, religious workers, and TN, Canadians and Mexicans through NAFTA.
It is important to note that while your employer may petition for you to change status, the USCIS requires a separate petition, an I-539 to change any family members’ status. Sometimes an employer will handle this petition as well. Alternatively, the applicant for employment status must handle it for his or her family.
If the new status to which you want to change does not allow employment, you can file the request to change of status with the USCIS. Examples of categories that allow you to file on your own are B-1 and B-2, tourists or business visitors, F-1, academic students. In these cases, one application can cover everyone in the same family.
Change of Status When Status Expired
One of USCIS’s cardinal rules is no one may change their status to another status unless they are in status. Put another way, if your status has expired you are out of status and may not change your status. USCIS allows certain very narrow exceptions to this rule. To take advantage of the exception you must show that you are out of status due to no fault of your own and for circumstances that were beyond your control. An example would be illustrative. An employee with a work visa notices that it will be expiring soon. The employee contacts the employer about renewing the visa. After reviewing the employee’s work history, the employer agrees to renew the visa. Next, the employer makes a note to contact the immigration attorney about the renewal, but fails to do so. After the employee’s status has expired, the employee contacts employer to ask when he or she will receive the renewal. Under these circumstances, it might be possible to still file for change of status demonstrating that the error of failing to renew the employee’s status was due to an oversight by the employer. We have successfully filed these types of difficult change of status cases.
Miscellaneous Information on Change of Status
After you file the change of status request, you can check on the processing time for your application at the USCIS website. Besides checking processing times for all applications for change of status, you can register with USCIS to get updates on your particular request. You should receive an answer from USCIS on your request before the processing time specified for all requests. If USCIS does not give you an answer, you can file an out abnormal processing time request with USCIS. We handle all these services if you have hired us to file the change of status request for you.
Just because you filed the change of status request correctly, USCIS isn’t required to approve it. Earlier, we discussed that requesting a change of status as a discretionary benefit, and that discretion is exercised by USCIS. If USCIS sees a problem in your application it might deny it. An example will illustrate this concept. You arrived as a tourist and requested an extension of your tourist status that USCIS granted. If you now apply to change your status, the USCIS may determine that you are spending too much time in the United States in nonimmigrant status and force you to go home to request a visa.
Sometimes you may be preparing to return home and receive an opportunity at the last moment. You have enough time to file a change of status request and do so while you are in status. However, when you check the processing time, you see that it is far in advance of when your current status will expire. If you leave United States, you will have abandoned your change of status request so USCIS will deny ittake. But, if you stay, you will be out of status. The USCIS recognizes this dilemma and provides a grace period of 120 days. During this period you may remain in the United States waiting for a decision on your change of status request. If USCIS approve your status request, your time out of status is forgiven. Alternatively, if your request is denied you must leave immediately. So long as you have not spent more than 120 days out of status, the US consulate in your home country will not hold that against you in your next request for a visa.
Lastly, applicants to change status wonder about the ability to either start work in the new status or participate in the activity authorized by the new status while the application is pending. You may only engage in the activities contemplated by the change of status request once USCIS approves it.
How We Can Help
If you need help deciding on whether a change of status application is right for your circumstances, we can advise you. If you already know that you would like to change status, and know that you need help with that change of status request, we have filed many applications for change of status successfully. Please contact us for change of status help.