Status change in the USA

It may happen that the reason for your stay changes while you are still in the USA. In this case, a change of status from one non-immigrant visa category to another may take place, provided the conditions are met. We will inform you in detail below about what you need to bear in mind when changing your status and what steps need to be taken.

 

What is visa status for the USA?

The visa status USA refers to the so-called residence status. The status therefore forms the legal basis for a foreign person's stay in the USA. The authorities distinguish between the approved U.S. visa (as a travel document), with which you "request admission" at the border, and the visa status. The U.S. border official determines the appropriate residence status when you enter the country, that is, the period during which you are actually allowed to physically reside 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 your stay.

The visa status for the USA is documented in the I-94 entry stamp in the passport and electronically on the I-94 website. The following information can be seen on the entry stamp or in the I-94:

  1. Duration of stay: For what period is the legal (physical) stay in the USA granted with the visa?
  2. Status: What is the purpose of the stay in the USA (visa category)?

Who can change the status?

Whether a change of status can be carried out depends primarily on the previous visa category with which you are currently staying in the USA.

STATUS CHANGE EXCLUDED

If you are in the USA on a C-1/D, K-1, K-2, K-3 or K-4 visa, you cannot change to another non-immigrant category. You are required to leave the United States before the date stated on the I-94 expires.

It is also important to note that travelers who are visa-free under the Visa Waiver Program in the U.S. cannot switch to a non-immigrant visa category. Again, you must leave the U.S. before the I-94 or date in your passport expires.

LIMITED CHANGE OF STATUS POSSIBLE

Holders of a J-1 or M-1 visa are subject to certain restrictions regarding status changes. 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 any other restrictions on the part of the J-1 visa sponsor should be inquired about in advance with the respective visa sponsor.

M-1 visa holders cannot switch to an F-1 visa. It is also not possible to change from M-1 to an H category if the stay with the M visa has helped to meet the requirements for an H visa.

STATUS CHANGE POSSIBLE

Holders of all other visa categories are entitled to apply to the U.S. Citizenship and Immigration Services (USCIS) for a change of status within the United States.

How do I apply for a status change?

The application for a change of status in the USA must be filed with the USCIS. The application must be submitted before the expiry of the I-94 entry form, i.e. before the expiry of the legal residence status. The USCIS recommends that you apply for a change of status at least 45 days before the end of I-94. In theory, however, the application can also be made on the last day of validity of the I-94 form.

In the application procedure two forms are essentially of importance:

  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 non-immigrant category to which the status change is to be made.

1. submission of the I-129 form is required when changing to categories E-1, E-2, H-1B, H-2A, H-2B, H-3, L-1A, L-1B, O-1, O-2, P-1, P-2, P-3 or R-1.
If spouses and unmarried children under the age of 21 also wish to move into the above derived categories (e.g., L-2 or H-4), Form I-539 for family members may be submitted in addition to Form I-129 for the principal applicant.

2. The I-539 form, on the other hand, must be submitted if the applicant wishes to move to the following categories: B-1, B-2, F, H-4, M, O-3, P-4, and R-2

In addition, other documents supporting the application must be submitted, which must be requested in advance from the USCIS.

Bild von einem PC, an dem der Statuswechsel in den USA online beantragt wird  

APPLY FOR STATUS CHANGE ONLINE

The possibility of online submission for status change procedures continues to progress. Under certain conditions, the I-539 form can be submitted electronically to the USCIS. Prerequisite:

  • It is a single applicant.
    This means that co-applicants, legal advisers or authorised representatives are not permitted.
  • The applicant is in the USA with the following status: B-1, B-2, F-1 (with special status expiration date), F-2 (relatives of F-1 holders with special status expiration date), M-1, M-2 (relatives of an M-1 holder)

For F-2 or M-2 status, the expiration date of the residence status is relevant compared to the F-1 or M-1 status:

  • Different expiration dates: The F-2 or M-2 status change can take place online as an independent person.
  • Identical expiration dates: The F-2 or M-2 status change must take place in paper form as co-applicant.

The procedure for an online application is as follows:

  1. First you have to create an online account.
  2. Then you can fill out the web-based I-539 form.
  3. Now you can upload a copy of your I-94 entry form.
  4. Additional documents and a written declaration can also be submitted.
  5. You pay the fee electronically.

If you would like to know whether you can use the new online application form for status changes, please visit the USCIS website.

Changes to the I-539 form

Since 8 March 2019, the form I-539 Extension / Change of Status has been made available by the USCIS in an updated form. The application form is required by all those who wish to extend or change their visa status within the USA. Requests for status changes submitted using the old I-539 form will be rejected by the U.S. authorities.

OVERVIEW OF THE MAJOR I-539 CHANGES:

  1. As of the changeover, each additional family member, such as spouse and children, must submit and sign a separate I-539A form. Previously, it was possible to register all family members on one I-539 form. 
  2. I-539 applicants must pay a Biometrics service fee of $85.
  3. Starting with the transition, all I-539 applicants will be required to make a personal Biometrics appointment at an Application Support Center (ASC) of the U.S. Immigration Service in the U.S. as part of the application process. I-539 Applicants will receive an invitation to the Biometrics Appointment for fingerprinting and biometric photographing. The application for a status change will only be processed after this deadline has been met.

EFFECTS ON APPLICANTS

For status change procedures with I-539, processing cannot be accelerated by Premium Processing (= processing within 15 calendar days). The request for status change is therefore very time-consuming and the processing times average three to six months (depending on category and responsible USCIS Service Center).

So far, in practice, with simultaneous submission of the I-539 form with the I-129 form (e.g. for L-1A or H-1B) and the use of Premium Processing, the I-539 application (for family members) was normally approved in the same, shorter period of time. Now that a Biometrics Appointment is taking place, experts are of the opinion that there will be delays in the status change. This means that processing times are likely to be longer than for the main applicant.

In addition, delays could also occur with applications for general work permits (Employment Authorization Document, EAD). In most cases, forms I-129, I-539 and I-765 (EAD) are submitted simultaneously. To date, the EAD for accompanying spouses has generally been approved within the premium processing period. After the changeover in March 2019, the processing of applications for a General Employment Work Permit may take longer.

Special Features of the Status Change in the USA

A request for a status change does not automatically guarantee that it will be approved. The USCIS examines each application very carefully and reserves the right to reject applications.

It is also important to note that as long as the USCIS has not made a decision regarding the change of status, you will not be allowed to take up any activity that already falls under the newly requested visa category.

Normally, visa holders will lose their legal residency status if they remain in the USA after the I-94 expires. However, if the application procedure for the status change is ongoing, i.e. no decision has yet been made by the USCIS and the I-94 expires, you may continue to reside in the U.S. (until the final decision) due to an exemption by the USCIS. However, if the request for a change of status is rejected, you must leave the United States immediately.

IMPORTANT: If you apply for a status change in the USA, you may not leave the USA until the final decision has been made. However, if you leave the USA and officially give up your status, your status change application will usually be considered withdrawn automatically. The US authorities will then officially reject it. Please note that a short departure to Canada or Mexico is also affected.

If you would like to apply for a status extension, we recommend that you read our information on "Status extension".

Updated on 24.9.2019


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