Extension of status and change of status in the U.S.

Who can extend or change his or her status in the USA?

Generally, foreign nationals who enter the U.S. must leave the country when their I-94 expires. As visa holders travel less in light of the COVID-19 pandemic, many face the expiration of their temporary residence status in the United States. However, it is also possible that the reason for your stay may change while you are still in the United States. In this case, you may be able to change from one nonimmigrant visa category to another under certain circumstances. We explain what to consider when applying for an extension of status and a change of status in the U.S. and assist you with the application process!

 

New Regulation for biometrics appointments

It's official: USCIS is temporarily suspending the mandatory biometrics appointments for certain I-539 applicants.

The biometrics appointment is an in-person appointment at a USCIS Application Support Center (ASC) in the U.S. where a photograph and the applicant's fingerprints are taken. As of March 2019, the biometrics appointment ($85 Biometrics Service Fee) was mandatory during the process.

Beginning May 17, 2021, initially limited to two years through May 17, 2023, a new rule applies to I-539 change of status and extension of status applications in the categories of

  • H-4,
  • L-2, and
  • E-1 / E-2 / E-3.

This means that family members of H, L and E visa holders (dependents) will be affected if they

  1. file new I-539 petitions of the above categories by mail or online on or after May 17, 2021 (receipt date) or
  2. have pending I-539 applications in the above categories on or after the May 17, 2021 and have not yet received a biometrics appointment notification.

For these I-539 applications, the Biometrics Fee of $85, which was otherwise due per person in addition to the basic fee, will be waived.

Individuals who have already paid the biometrics fee and no longer have an appointment to attend will be refunded the fee; provided that it was submitted separately from the basic fee (i.e., with a separate check).

Note: All current I-539 cases that have received an invitation for a biometrics appointment by May 17, 2021, must attend the appointment. Even if that appointment is after May 17, 2021.

In practice, the following is changing for family members of H, L, and E visa holders in the I-539 change of status and extension of status process:

H-4, L-2, and E-1, E-2, and E-3 holders must file their I-539 petitions without a biometrics fee beginning May 17, 2021. There will be a transition period until May 27, 2021, but as of that date, applications for extension or change of status that are received with a biometrics fee will no longer be accepted by the USCIS. In this case, the application must be resubmitted.

Note: All other procedures of status extensions or changes in other categories are still affected by the biometrics appointments.

The background to the new rule is the immensely long processing times at the USCIS Service Centers and the accompanying delays for potential Employment Authorization Document (EAD) applications. Many of the L-2 / E and some H-4 dependents file an I-539 and an I-765 application at the same time (= concurrent filing). However, the I-539 application must first be approved so that an EAD can be issued based on it.

What is the status?

Residence status is granted to a foreign traveler to the United States each time he or she enters the country upon presentation of a valid U.S. visa or ESTA authorization under the Visa Waiver Program. The status is documented at the border by means of an I-94 entry stamp in the passport and simultaneously recorded electronically under the I-94 website.

Sometimes the technically incorrect term U.S. visa status is used, meaning the status or residence status.

The status thus forms the legal basis for a foreign individual's stay in the USA and determines the details of the stay. The following information can be seen on the entry stamp or in the I-94:

  1. Length of stayHow long is the person actually allowed to physically stay in the U.S. on the visa? I.e., for what period of time or until what date is the maximum legal (physical) stay in the U.S. granted with the visa?
  2. StatusUnder what status is the person allowed to stay in the United States? I.e. what is the purpose of the stay in the USA (= visa category)?

Accordingly, the U.S. authorities distinguish between the approved U.S. visa (as a travel document), with which you "ask for admission" at the border, and the (residence) status. The CBP officer at the border determines the status when you enter the country. The status describes the period of time you are actually allowed to be physically present in the United States. This status often differs from the U.S. visa in your passport – so it can be shorter or longer depending on the visa category and purpose of stay.

This means that the U.S. border officers decides on the basis of the corresponding U.S. visa (travel document),

  1. whether to allow the person to enter the country, and if so,
  2. for how long.

Residence status thus refers to a temporary residence permit for a specific purpose.

Note: Do not confuse the validity of your status with the validity of your visa. Nonimmigrant visas allow entry into the U.S. for a limited time and for a specific purpose, such as work or study, and are valid for a limited period of time (see expiration date on the visa). Within this period, holders may enter the U.S. with the visa. However, the approved residence status often differs from the duration of the U.S. visa in the passport – it may be issued for a shorter or longer period.

What to do when the granted period of stay expires?

In the wake of the Corona pandemic, the U.S. government has imposed borad travel restrictions. Since then, many foreign nationals have been unable to enter the United States. Although there are no restrictions on leaving the U.S., subsequent re-entry into the U.S. is regulated and, in some cases, considerably more difficult.

For this reason, many expats stay in the United States longer than planned without leaving the country. Normally, the residence status of visa holders is extended via exit and re-entry into the United States.

If the granted duration of stay threatens to expire soon, holders of a nonimmigrant visa should check the possibility of an extension of the residence status or – if a status extension is not possible – a change to another status so that they do not stay unlawfully or illegally in the United States (= overstay).

In the case of an extension of status or a change of status in the USA, it may be possible to extend your stay in the United States without having to leave the country.

The two most common reasons for applying for an extension of status in the U.S. are:

  1. It is not possible to leave the U.S.
    Examples:
    a. Due to COVID-19 and the Corona travel ban, travel home to Germany for instance is not possible because re-entry into the U.S. is problematic in the current situation.
    b. For B-1 After Sales Service projects, if affected employees remain on site for an extended period of time and are unable to leave because no interruption is allowed (implementation of machine, etc.).
  2. The petition (I-797) within the U.S. must be extended
    Traditionally for L-1 extensions (I-129 form) or for other petition-based work visa categories (H-1B, O-1, etc.).

When changing status, it is often common to change from a derivative L-2 visa to an F-1 student visa or B-2 tourist visa.

Tip: It is worth checking carefully whether the option of a status extension in the United States makes sense when a residence status expires. This is because once you leave the U.S., the status will lapse and you will need a valid visa to re-enter the country, which you may need to apply for at the U.S. consulate in your home country with appropriate application documentation (if your visa has expired). In addition, you may be affected by the U.S. entry ban and require special permission to enter the country (= National Interest Exception).

In recent weeks and months, our competent visa consultants have been very successful in filing status extension applications for our clients in the United States. We would be happy to assist you as well – contact us now without obligation!

Bild von einem US-Visum, das das Visa Reissuance Program ermöglicht

Requirements for status extension and status change in the USA

Whether an extension of status or a change of status can be filed with the U.S. Citizenship and Immigration Services (USCIS) within the United States depends primarily on the visa category with which you are currently residing in the United States.

Holders of almost all nonimmigrant visas are eligible to apply for an extension of their authorized period of stay or apply to change their nonimmigrant status.

However, a few basic requirements must be met first:

  1. You are currently in the U.S. on a valid nonimmigrant visa (see expiration date on visa).
  2. Your nonimmigrant status is still valid ("I-94 status valid").
  3. Your passport is currently valid and will remain valid for the duration of your stay or requested extension period.
  4. You have not committed any crimes that would cause you to lose qualification for a U.S. visa.
  5. You have not violated any immigration laws.

In addition, depending on the category, there are other requirements that must be met or evidence must be provided. Please also note that there are nonimmigrant visa categories that entitle you to extend your stay in the U.S., but do not allow you to change to another nonimmigrant category. The following nonimmigrant categories generally entitle you to an extension of status and / or a change of status:

  • A visa
  • B visa
  • CW visa
  • E visa
  • F visa
  • G visa
  • H visa
  • I visa
  • J visa
  • K-3 / K-4 visa
  • L visa
  • M visa
  • N visa
  • NATO-7 visa
  • O visa
  • P visa
  • R visa
  • T visa
  • TN / TD visa
  • U visa
  • V visa

Be sure to find out what options are available to you well before your status expires. Our visa experts will be happy to assist you with the initial assessment and the subsequent application process. Contact us now!

Who is excluded from extending and changing status in the USA?

There are certain U.S. travelers who are not eligible to apply for extension and / or change of status. These individuals are required to leave the United States prior to the expiration date noted on the I-94, which is the maximum length of stay allowed. This affects the following individuals:

  1. Individuals who have violated the conditions of their visa or committed criminal offenses.
  2. Travelers who are staying in the United States under the Visa Waiver Program with ESTA. This means that ESTA holders must leave the United States after a maximum of 90 days.
    Please note: Visa Waiver travelers who are unable to leave the country in time due to the Corona crisis (canceled return flight, stationary hospital stay, etc.) and who are therefore threatened with exceeding their issued maximum stay of 90 days, can apply for a satisfactory departure status and extend their stay in the U.S. for up to 30 days at a time under a goodwill arrangement by the U.S. Customs and Border Protection (CBP).
  3. Holders of a C-1/D visa
  4. Holders of a K-1 / K-2 / K-3 or K-4 visa
    Note: Under certain circumstances, an extension of status is possible for K-3 or K-4 visa holders.

In addition, there are other cases in which the stay in the United States cannot be extended.

Special considerations when extending status

Individuals who have exhausted the maximum residence status of a visa category cannot obtain another extension of status (e.g., L-1 or H-1B).

Special considerations when changing status

  1. J-1 or M-1 visa holders are subject to certain restrictions regarding changes of status. J-1 visa holders cannot change status if they are subject to the 2-Year Foreign Residence Requirement. Whether this is the case and whether there are further restrictions on the part of the J-1 visa sponsor, should be checked in advance with the respective visa sponsor.
  2. M-1 visa holders cannot change to an F-1 visa. It is also not possible to change from M-1 to an H category if the stay on the M visa has contributed to meeting the requirements for an H visa.
  3. Holders of nonimmigrant visas (categories A through V) cannot change their status to K-3 or K-4 under any circumstances.

Bild von einem Globus der die USA zeigt und einem Geschäftskunden

Application for status extension / change of status

How to apply for extension of Status / change of status?

The application for extension of status / change of status must be filed with the U.S. Citizenship and Immigration Services (USCIS) prior to the expiration of the I-94 – that is, prior to the expiration of legal residence status and thus within the United States.

There are two main forms involved in the application process:

  1. I-129 Form Petition for a Nonimmigrant Worker.
  2. I-539 Form Application To Extend / Change Nonimmigrant Status

Which form is relevant depends on the particular nonimmigrant category.

Form Visa categories
I-129

Extension / change for nonimmigrant workers:

  • E-1 / E-2 visa
  • H-1B / H-2A / H-2B / H-3 visa
  • L-1A / L-1B visa
  • O-1 / O-2 visa
  • P-1 / P-2 / P-3 visa
  • R-1 visa and
  • TN visa
I-129 + I-539

Extension / change for family members (spouses and unmarried children under 21 years of age) in the derivative categories of the above visas:

  • CW-2 visa
  • E-1 / E-2 / E-3 visa
  • H-4 visa
  • L-2 visa
  • O-3 visa
  • P-4 visa
  • R-2 visa
  • TD visa
I-539

Extension / change for

  • A- / A-3 visa
  • B-1 / B-2 visa
  • F-1 visa
  • G- / G-5 visa
  • I visa
  • J-1 / J-2 visa
  • M-1 visa
  • N, NATO-7
  • T-1 / T-2 / T-3 / T-4 / T-5 / T-6 visa
  • U-1 / U-2 / U-3 / U-4 / U-5 visa and
  • V visa

 

Family members, such as spouses and children, must also submit and sign the form I-539A.

Please contact the USCIS to find out which additional application documents must be submitted in your individual case. The application is filed either in paper form by mail or, in certain cases, online.

Certain I-539 applicants are required to attend a biometrics appointment in person at a USCIS Application Support Center (ASC) in the U.S. as of March 2019. Further security checks of the applicants take place in the background.
However, beginning May 17, 2021, applications in the H-4, L-2, as well as in the E-1, E-2, and E-3 categories have been exempted from biometrics appointments for an initial temporary period of two years.

Please note that applications for extension of status are closely examined by the USCIS, meaning not every application is automatically approved.

Important: As long as your U.S. status extension or change of status proceedings are ongoing and have not been finally adjudicated, you may not leave the United States. This includes brief departures to Canada or Mexico. If you do leave the United States, you will officially relinquish your status. At that point, your current application will lapse as you will automatically withdraw your application when you leave the United States. As a result you will receive an official denial from the U.S. authorities. It is also important to note that as long as the USCIS has not made a decision regarding the change of status, you may not engage in any activity that already falls under the new visa category applied for.

When to apply for an extension of status / Change of Status?

The USCIS recommends that the application should be filed no later than 45 days before the expiration of the I-94. However, in theory, the application can still be filed on the last day of I-94 validity. The decisive factor is the USCIS receipt date, not the postal receipt postmark.

I-539 procedures are generally relatively lengthy and processing cannot be accelerated by means of premium processing service (= processing within 15 calendar days). On average, processing times are around three to six months (depending on the category and USCIS Service Center); in some cases even significantly longer. Expedited processing is only available for status extensions using an I-129 form (e.g., in the context of L-1 or H-1B applications). For an additional fee of currently 2,500 U.S. dollars, the USCIS agrees to decide on the application within 15 days, provided there are no queries.

Note: Normally, visa holders lose their legal residence status if they continue to reside in the U.S. after the I-94 expires. However, if the I-94 expires while the application for extension of status or change of status is pending and the USCIS has therefore not yet made a decision, you may continue to reside legally in the U.S. (until the final decision) – in a kind of "tolerated status". However, if your application for an extension of status or change of status is denied, you must leave the United States immediately. This is often accompanied by the U.S. visa being declared invalid (on the basis of which the entry was made).

Apply for extension of status / change of status online

Under certain circumstances, the I-539 form can be filed electronically with the USCIS. The requirement is that the applicants must be individual applicants (without co-applicants, legal counsel, or authorized representation) in the United States with the following status:

  • B-1 business visitor
  • B-2 tourist
  • F-1 student with special status expiration date
  • F-2 dependents (spouse, child) of student with special status expiration date
  • M-1 vocational student
  • M-2 dependents (spouse, child) of vocational students

Particularity: F-2 or M-2 holders must compare the expiration date of the residence status with that of their spouse or parent who holds the F-1 or M-1 status. If the expiration dates are:

  1. different, F-2 or M-2 holders may file an online application as a separate person.
  2. identical, the F-2 or M-2 holder's application must be submitted in paper form as a co-applicant.

Tip: Multiple applicants (e.g., family) may, of course, submit their respective applications for status renewal individually online, but they will incur higher fees than if they use the "group application submission" method by mail ($370 per person instead of $370 per family).

To use the web-based process, an online account must first be created. Then, the online form is completed, a copy of the I-94 document is uploaded. In addition, it is possible to upload a written statement and other documents. The fee can also be paid online.

You can check online if you qualify for the electronic application by visiting the USCIS website.

Bild von einem Computer für die Online Statusverlängerung in den USA

Our services for extension of status and change of status in the USA

With our expertise, we will reliably assist you through every step of the application process.

  • Analysis of your residence situation and examination of the requirements for a status extension and / or a change of status
    (if necessary, suggestion of alternatives)
  • Support in compiling, filling out and translating the application forms
  • If applicable: support, processing and filing of petition-based applications, such as L-1 status extensions
  • Review for completeness and accuracy
  • Providing guidance on proper filing procedures
  • Checking the I-94 with the new status

We would be happy to provide you with a no-obligation consultation regarding our services. Contact us today!

Updated on 18.5.2021


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