How Do I Change My Immigrant Status?
How Do I Change My Immigrant Status?
Nonimmigrant visas are issued for specific purposes for limited amounts of time. Sometimes, those who received nonimmigrant visas for one purpose may decide they want to change to another status to accomplish other purposes. For example, a person who entered the US to receive a graduate degree may decide he or she would like to pursue employment in the US, requiring a change from a student visa to a temporary worker visa.
Not all categories of nonimmigrant visas are eligible for changing immigrant status. Those who received D, K-1, K-2, S, TWOV, WT and WB nonimmigrant visas are ineligible for changing their classifications. Those holding a J-1 exchange visitor visas and who are subject to the 2 year foreign residence requirement cannot change status. Also, vocational students holding M-1 visas cannot change to academic F-1 student visas or H class temporary worker visas if their vocational training made them eligible for the H visa. Rather, holders of these visas must return to their home countries and reapply for the new nonimmigrant visa category. In some cases, they may have to remain in their home countries for a certain period of time before they may apply for a new visa.
The process for changing visa status depends on the type of visa for which the applicant wishes to apply.
- If the applicant is changing to a non-employment status, the applicant must file an Application to Extend/Change Nonimmigrant Status (Form I-539) with the USCIS before the expiration date on the applicant's I-94 Nonimmigrant Arrival-Departure Record card (i.e. the date the nonimmigrant is required to leave the country).
- If the applicant is changing to an employment status (E, H, L, O, P, Q, R or TN nonimmigrant visa), the prospective employer must file a Petition for Nonimmigrant Worker (Form I-129) with the USCIS before the expiration date of the I-94 card. The employer also may have to receive labor certification from the Department of Labor prior to filing the petition.
Those wishing to change status must have a passport that will remain valid during the entire period of their new status. Applicants also must apply for the change in status prior to their departure date. If they fail to do so, they will be required to return home and begin the nonimmigrant visa application process over. With this in mind, applicants should apply for the change in status no later than 60 days prior to their departure date to allow sufficient time for processing. Applicants who file their applications prior to their departure dates but do not receive a decision by their departure dates may be able to remain in the US until the USCIS issues its decision, so long as they meet the basic eligibility requirements and have not violated their status.
Just because an applicant submits their application prior to their departure date does not mean their application will be approved. Applicants must meet all of the requirements of the new nonimmigrant classification. If applicants violated the terms of their previous status in any way, their applications to change status will be denied. Applicants also must be in the US legally in order to apply. However, even if an applicant meets all of these requirements, the USCIS still may decide to deny the application for other reasons.
Contact an immigration attorney for more information on filing for a change in immigration status.
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