Change of Status
Who Needs to Apply
When you are admitted into the United States, a U.S. official will
assign you a nonimmigrant category according to the purpose of your
visit. If you want to change the purpose of your visit while you are
in the United States, then you or, in some cases, your employer must
ask the INS to change your nonimmigrant status. For instance, if you
arrived as a tourist, but want to become a student or employee you must
submit an application to change your status with the INS.
In order to qualify to apply for a change of nonimmigrant status, a
nonimmigrant alien must be in lawful nonimmigrant status. This means
that the applicant has not overstayed the departure date shown on his
or her arrival/departure record (form I-94), nor engaged in unauthorized
employment or done anything else in violation of his or her nonimmigrant
status.
Late Filings for a Change of Nonimmigrant Status
If you are late filing for a change of nonimmigrant status and your
current status has already expired, you must prove that:
- The delay was due to extraordinary circumstances beyond your control;
- The length of the delay was reasonable;
- You have not done anything else to violate your nonimmigrant status
(such as work without INS approval);
- You are still a nonimmigrant (This means that you are not trying
to become a permanent resident of the United States. There are some
exceptions.); and
- You are not in formal proceedings to remove (deport) you from the
country.
How to Apply
Depending upon the nonimmigrant category into which the applicant
seeks a change of status, two different application forms are used.
For those who seek a change of nonimmigrant status into E, H, L, O,
or P classification, form I-129 (with the appropriate supplement) is
used. This is a combined petition and change of status application.
For those seeking all other nonimmigrant classifications, an application
for change of nonimmigrant status is made on form I-539. Spouses and
children of applicants for change of status into E, H, L, O, or P classification
must file their own application, using form I-539.
These applications should be filed with the INS regional service center
having jurisdiction over the place where the applicant is living.
Intent When Entering U.S.
The INS follows the "30/60 day rule" in adjudicating most
applications. If a person applies for a change of nonimmigrant status
within 30 days of arriving in the U.S., the application is presumed
to be fraudulent. The reason for this is that they doubt that a person
who applies for a change of status within 30 days of entry was truthful
when he or she stated their reason for coming to the U.S. when they
originally entered. This presumption may be rebutted, but applicants
should be aware of it.
Applicants who apply more than 60 days after entry are presumed to
be acting in good faith. Applicants who apply between 30 and 60 days
are suspect, but not presumptively fraudulent.
The INS has recently spoken to the issue of an applicant's status when
the INS has not acted on their application for change of nonimmigrant
status by the time the applicant's I-94 expires. To read the full policy
memorandum click here.
