How Do I Change My Nonimmigrant Status? Proven Methods

Many clients have asked me, “How can I change my nonimmigrant status?” I want to answer that question today.

This is Alicia N. Morgan, an immigration lawyer from Immigration Lawyers USA in Florida. Let’s discuss…

Nonimmigrant status means temporary permission for individuals who want to enter America for specific reasons, such as tourism, education, or work. These are all covered by a nonimmigrant visa.

Maintaining legal status in America is essential to bypass severe consequences, including deportation or being barred from reentry into America.

Suppose the circumstances have changed, and you need to switch your legal status to a different one. In that case, you must understand the whole process of Changing your nonimmigrant visa status before proceeding.

Meeting eligibility criteria, submitting the correct forms, and ensuring you are acknowledged with U.S. immigration laws throughout the transition are included!

Eligibility Criteria

Before changing your nonimmigrant status, there are some specific steps to meet;

1. Lawful Admission with a Nonimmigrant Visa: You must be admitted to America with a valid nonimmigrant visa. This means you followed the USA’s legal rules during entry and got a valid and specific type of visa to stay without lying or misrepresenting any facts. 
2. Maintaining Valid Nonimmigrant Status: The other step to be eligible to change nonimmigrant visas is to keep your valid nonimmigrant visa. Maintaining your visa rules, such as the duration of stay, is crucial, and don’t try to overstay your authorized period.
3. Acknowledgment of the Current Status: You must comply with your visa’s terms and conditions. For example, if you enter with a student visa, you must enroll in the entire study course, as required!
4. No Involvement in Activities That Would Disqualify Status Change: Remember, violation of the terms of your visa (like criminal activities or unauthorized employment) can be a cause to disqualify you from changing your current status. Always try to stay in line with your visa’s terms.

Ineligible Categories

The opportunity to change a nonimmigrant status is not for everyone who enters the United States. Some categories of visa holders are restricted from changing nonimmigrant status.

1. Visa Waiver Program, Crew Members, and Others: The person who comes to the U.S. for business or tour purposes under the Visa Waiver Program(VWP) or as a crew member (D visa holders) is not eligible to change nonimmigrant status. This legal status allows the citizens of participating countries to participate in tourism or business for up to 90 days without obtaining a visa. You cannot change or extend the timing of this status, although Visa Waiver Applicants can adjust their status if they marry a U.S. citizen. 
2. Restrictions for Specific Nonimmigrant Visas (e.g., M-1, J-1): Some visas have specific limits to changing nonimmigrant status. For instance, M-1 visa holders( cannot adjust to F-1 student or H-1B employment status. Similarly, J-1 visa holders often face a two-year home residency requirement; this mandates that they return to their home country for two years before applying to change their nonimmigrant status or certain other visas unless a waiver is obtained.   
3. Exceptions and Waivers: Sometimes, exemptions or waivers may be available for those ineligible to change nonimmigrant status. For example, J-1 visa holders subject to the two-year home residency requirement can apply for a waiver based on specific grounds, such as fear of persecution or hardship to a U.S. citizen spouse. Discovering these options is essential if you may qualify for an exception.

Process of Changing Status

There are various critical steps to changing a nonimmigrant status. Here are essential things that you need to know to handle the process successfully: 

1. Filing Form I-539 or Other Relevant Forms: To start changing your nonimmigrant status, you must file and submit Form I-539 (application to extend/change nonimmigrant status with USCIS). Based on your conditions, you may need to file additional Forms or petitions, such as Form I-129 (petition for a nonimmigrant worker), if you want to change a work-based visa. Filling these forms accurately is essential to avoid unwanted delays or rejection.
2. Required Supporting Documents: You must submit supporting documents and the application that justifies your request to change the nonimmigrant status. Here, you can include a copy of the current I-94 Arrival record, proof of your current nonimmigrant status, financial documents, and any other related documents that align with the visa you are applying to change, as well. as the reason. Submitting a thorough and well-prepared filing will increase the chances of approving your request to change your nonimmigrant status. Remember that it is wise to discuss or file your case with an experienced Immigration Lawyer if possible. 
3. Timelines and Processing Times: The time required to process the changing status varies widely based on the type of visa and the work pressure at USCIS. It may take several months to a couple of years to finalize a decision. During this processing time, it’s crucial to monitor the condition of your application through the USCIS online case status tool. If needed, you must also be prepared for additional document requests (RFEs). 
4. Importance of Applying Before Current Status Expires: It’s tough to apply for changing status before the current nonimmigrant status expires. Submitting the file in time will prove that you remain legally in the USA while your application is being processed. If your current status has expired before you apply for a new one, it will be considered out of status. As a result, you could face severe consequences, including the potential for removal from America, and it will be tough to get future visas. 

Common Status Changes

Many examples of individuals trying to change their nonimmigrant status in the United States. 

Here are some of the most frequently pursued changes:

1. Tourist (B-2) to Student (F-1): Many individuals who enter the U.S. with a B-2 tourist visa for education and wish to change their visa to F-1(visa for full-time students). Remember, to change this status, you must first be accepted by a U.S. educational institution authorized to admit international students. You must submit evidence of acceptance and financial ability to collaborate on your studies and prove that you maintained your B-2 status as needed. It’s crucial to start this process smoothly before the expiry of your tourist visa to avoid being out of status. 
2. Visitor (B-1/B-2) to Other Nonimmigrant Categories: Persons who come with B-1 (business) or B-2 (tourist) visas are also seeking other nonimmigrant categories like H-1B (special occupation workers) or L-1 (intra-company transferees). Here, generally, one needs to file Form I-539. Sometimes, employment is involved, and employers have to file Form I-129. Supporting documents will vary based on the new visa type but typically include evidence of the reasons for the change, qualifications for the latest status, and proof of maintaining your current status. 
3. Change to Employment-Based Visas: Nonimmigrant persons of several temporary visas want to change their status to an employment-based visa, like H-1B, L-1, or O-1 (individuals with extraordinary ability). Here, prospective employers usually require you to file a petition on your behalf. Here, you must prove that you are qualified to get the new employment-based visa and that the job offered fulfills the U.S. visa requirements. Remember, time is also essential, especially with H-1B visas. It varies depending on the number of visas issued. 

Pending Application Considerations

If you have a pending application to change nonimmigrant status so, you may need to be aware of some crucial rights and limitations for an easy transition:

1. Rights and Limitations While the Application Is Pending: When you submit your application to change nonimmigrant status, you may stay in the U.S. during the processing time of your application, even if your original visa has expired. In this period, your rights will be considered as your current status grants until your new status is approved. For instance, if you are converting from a tourist visa to a student visa, you can start your studies once the F-1 status is officially approved. So, filling out an application only gives you access to the benefits of the new visa category once approved. 
2. Avoiding Violations of Status During the Transition: It’s essential to stay safe from any violations of your current status while your application is being processed. For example, if you are on a B-2 tourist visa, starting studies with the proper authorization can prevent you from denying your application and may lead to being out of status. Remaining compliant with current visa terms until the change is officially approved is essential to avoid potential legal issues and a successful status conversion. 

Special Cases

In some cases, special considerations are needed when changing a nonimmigrant status. Below are some unique cases with specific processes:

1. Change of Status for Dependents: Based on the nonimmigrant visa holders, like the spouses and the children, often hold derivative visas (e.g., H-4 for H-1B dependents or F-2 for F-1 dependents). When any primary visa holder changes their status, dependents also have to apply to change their status to maintain their legal residency. The process involves filling out Form I-539 for every dependent, where you also have to confirm that they meet the eligibility criteria for the new status and submit the essential supporting documents. Coordinating these applications is crucial to verify the smooth transition for all the family members.
2. Nonimmigrant to Immigrant Status (Adjustment of Status to Green Card): Transitioning from nonimmigrant status to permanent residency (green card) is called the adjustment of status (AOS). This process is for those who complete specific criteria, such as being sponsored by a U.S. employer or family member or via other eligible categories like asylum or the DV lottery. Here, applicants must file Form I-485 (application to register permanent residence or adjust status), which includes supporting documentation. Maintaining lawful status is essential, as falling out of status can complicate or even jeopardize your adjustment to permanent residency. Keep in mind that you should not take steps towards adjusting your status too soon, or you could be accused of violating your nonimmigrant intent. 
3. Change of Status for Victims (T and U Visa): Victims of human trafficking (T visa) or certain crimes (U visa) may be able to make a change in their status, which provides them with specific protections and, ultimately, a way to permanent residency. The T visa is for the victims of severe forms of trafficking who have cooperated with law enforcement. At the same time, A U visa is for those victims of certain crimes who have suffered substantial mental or physical abuse and have helped law enforcement during the investigation or prosecution of crime. The process of these visas includes submitting substantial evidence with police reports, medical records, and personal statements to demonstrate eligibility. These cases are often complicated, and consulting with an attorney is advisable to navigate the process effectively.  

Frequently Asked Questions

Can I stay in the U.S. while the change of status is pending?

Yes! You can stay in the United States while your application to change nonimmigrant status is still being processed. You are authorized to remain during the processing time of a changing application, but you have to file your application before the expiration of your current visa status. 

What forms are required for different types of status changes?

The primary Form to apply to extend/change nonimmigrant status is I-539. If you need to change a work-based visa, your employer must file Form I-129 on your behalf. On the other hand, Form I- 485 is used to adjust permanent residency. However, there may be different forms, like I-765, in some specific situations. Always check the USCIS website; it’s even better to contact an immigration lawyer for a better understanding.

Conclusion

Navigating changing nonimmigrant status in America is complex and requires much effort. In this article, we explained the key aspects, including eligibility, the application process, and special consideration for various types of visas. You should properly maintain your legal status and comply with all the rules and regulations to avoid unwanted complications.

Hiring an immigration attorney to avoid these complexities, speed up the application, and complete the whole process smoothly is a clever decision for anyone. An attorney can always guide you correctly to avoid common pitfalls and increase the possibilities of a successful outcome. Contact the best lawyers at Immigration Lawyers USA today for help extending or changing your nonimmigrant status.