To lawfully enter the U.S., foreign nationals need a valid visa. Generally, aliens who wish to remain in the country temporarily or who do not fall into specific categories will get a nonimmigrant visa. At the moment, there are more than 30 nonimmigrant permits, each one targeted to different activities. This includes working, studying, or visiting the U.S. for leisure purposes.

As the name suggests, nonimmigrant aliens do not intend to permanently settle in the U.S. In other words, they are supposed to leave the country when their authorized stay expires. Being able to demonstrate your strong ties with your home country is one of the key requirements for the majority of temporary visas.

However, if you are in the U.S. on a nonimmigrant visa, your situation can change so that you may wish to change your status. If you need a permanent, immigrant visa to remain in the U.S., you can apply for a change of status.

To explore your options to change your status and remain in the U.S., you can ask your attorney. One of the IAS’ immigration lawyers will be happy to review your situation and help you get immigrant, permanent status in the U.S.

Change of status in the U.S.: who is eligible?

If you are in the U.S. on a nonimmigrant visa, you may be eligible for a change of status. In most cases, you and your U.S. sponsor (if applicable) must submit the appropriate form to the USCIS. This must be done before your current immigration status expires.

As a general rule, you can change your status if you were admitted in the U.S. on a nonimmigrant status. If you have not violated your conditions of stay and you meet specific requirements, you can submit a claim to review your case.

Thre are some cases where a change of status is not required. For example, you do not need to apply for it if you are the spouse or child of a U.S. Visa holder and you wish to attend school in the country.

Who is not eligible for a change of status?

Although the majority of nonimmigrant visas can be eligible for a change of status, some aliens cannot apply for this kind of benefits. This includes:

  • Spouses of U.S. Citizens on a K3 Visa and their accompanying F4 Dependents;
  • K1 Fiancé(e) Visa holders and K2 Dependents;
  • Immigrants on the Visa Waiver Program;
  • J1 Visa holder (only the categories subject to the two-year foreign residence requirement);
  • M1 Vocational students who wish to change their status into any H or F visa.
nonimmigrant status

What are the requirements to change your immigration status?

You may be eligible for a change of status if you:

  • Were lawfully admitted into the U.S. on a valid nonimmigrant visa;
  • Have not committed any felony that would make you ineligible to receive immigration benefits or remain in the U.S.,
  • Submit your change of status request before the expiration date of your visa and Form I-94 (Arrival-Departure Record).

How to change immigration status in the U.S.?

You should apply for a change of status as soon as you decide to get a new immigrant visa.

There are two different ways to change your status. If you currently are on an employment-based immigration status, you will need to file a Form I-129. Differently, if you wish to change your status as a visitor or student, you must use the Form I-539.

Change of status for Employment-Based Categories

By Filling a Form I-129, U.S.-based employers can petition on their nonimmigrant workers’ behalf. To be eligible for this change of status, you must keep performing the same type of work that was listed on your nonimmigrant permit.

Employment-based nonimmigrant categories that can file a Form I-129 to change their status are:

Non-Employment Based Categories

The following are the nonimmigrant categories that can apply for a change of status by filing a Form I-539. These applicants do not need a petitioner to sign their forms.

If you are on a non-employment based visa and you wish to change your status, you can list your dependents on your I-539 Form. However, only your partner and your unmarried children under the age of 21 can be eligible for this benefit. Other family members may need to submit a different form, but may not qualify for a change of status.

What happens if my current visa expires before I apply for a change of status?

Until you receive confirmation from the USCIS, you must do not assume that your change of status request has been approved. If your application is denied, you must leave the U.S. when your nonimmigrant visa expires.

However, if your permit expires before your change of status request is filed, you will be violating the terms of your immigration visa. In other words, you will be considered “out of status”, and cannot obtain any immigration benefit, including a change of status. At this point, you must leave the country and apply for a new visa at a U.S. Consulate abroad.

Do not forget that being out of status can harm your immigration records. This means you may not be able to return to the U.S. at a later time. If you are out of status for more than 180 days, you may be subject to a 3-year or 10-year ban from the U.S.

It must be noted that there is no appeal from a denial of a change of status. If the USCIS denies your request, you can only apply for a motion to reopen or reconsider your case. This may be a good idea if you wish to present additional evidence that may support your request. However, if your form is rejected again, you must leave the U.S. as soon as your current nonimmigrant status expires.

Change of status and Adjustment of status: what are the differences?

Change of status and Adjustment of status are two different procedures.

A Change of status is available for nonimmigrant aliens who wish to change their condition to remain in the U.S. In most cases, this is possible without the need of leaving the country.

You may be eligible for a Change of status if you did not violate your conditions of stay and fall into specific nonimmigrant categories. If you are temporary workers, the petition to change your status must be signed by a U.S.-based employer, who acts as a sponsor.

Differently, an Adjustment of status is a process by which a nonimmigrant alien applies for a Green Card. Only eligible applicants who fit into certain categories can apply.

For example, if you entered the U.S. on a nonimmigrant status, but you married a U.S. citizen, you become an immediate relative of a national. At this point, you can file a Form I-485 to apply for your legal permanent resident status. While you wait for your authorization, you must be physically present in the U.S. and undergo an interview with a USCIS officer. At the end of this process, if your petition is successful, you will receive your Green Card, officially becoming a U.S. permanent resident.

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