Change of Status: From One Non-Immigrant Visa to Another

Visa Application Approved Stamp Showing Entry Admission Authorized

There are two types of visas for foreign nationals who want to travel to the United States.

These are the non-immigrant visa (NIV) or immigrant visa (IV). The immigrant visa allows aliens gains legal permanent resident status upon entry (Green Card). However, every alien on an NIV is subject to requirements and restrictions of their NIV status.  US Immigration Law allows non-immigrant aliens to change their status to another type of non-immigrant visa while in the United States provided they meet the requirements for that particular visa.

This process is known as “change of status” (COS). This is a completely different process compared to a non-immigrant applying for legal permanent status or “adjustment of status” (AOS).

There are over 40 different NIV categories. The following are NOT allowed to change their non-immigrant status:

1- C- Alien in Transit

2- D- Crewman

3- K-1 or K-2- Fiancé(e) or Dependent of Fiancé(e)

4- S- Witness or Informant

5- TWOV- Transit without Visa

6- Visa Waiver Program- WT/WB status

 

The following non-immigrant categories have certain restrictions for requesting COS:

* J-1- Exchange Visitor. A J-1 subject to the 2-year foreign residence requirement cannot change status, with certain exceptions.

* M-1- Vocational Student. M-1 students cannot change status to F-1 or any H qualification if the vocational training helped them qualify for H classification.

Requests for change of status must be filed using forms authorized by USCIS with the required application fee. The procedure depends on the type of non-immigrant status the alien prefers. If they opt for an employment-based visa category, the alien’s prospective employer should file a Form I-129 (Petition for a Non immigrant Worker) before their Form I-94 expires. The Form I-129 functions as application for type of work classification and COS application. 

If the alien wants to change to a non-immigrant category (not a working visa), he/she should file Form I-539 (Application to Extend/Change Non-immigrant Status).

All COS applications must be made before the alien’s previous status expired. If an alien’s status expired before filing a COS application with the USCIS, these are considered “out of status” or they are no longer eligible to change their status. The USCIS recommends applications file not later than 60 days before the I-94 expiration.

Aliens applying for a COS will remain in valid non-immigrant status when their I-94 expires if they have applied for a change to non-immigrant status. If their COS application was filed in a timely manner (before expiration of current status), they will be able to stay legally in the US while their COS application is pending but not in their original status.

 

Change of Status and 30/60 Day Rule

An issue may arise when a NIV holder submits change of status application and the original application was based on fraudulent “pre-conceived intent.”  A person cannot have a preconceived intent to enter the US which is a purpose different from what is stated in the NIV category.  With regards to COS application, the USCIS often applies the Department of State’s 30/60 Day Rule to prevent fraudulent pre-conceived intent. The only NIV exempted from this rule are those allowing dual-intent (H-1, O-1 L-1, P, and K).  You can find details on how the USCIS will treat COS applications below:

1- If an alien files an immigration petition or adjustment of status within 30 days’ entry into the United States, the USCIS will conclude the alien entered with “fraudulent intent” to remain in the US. The non-immigrant visa will be classified as unlawfully obtained.

2- If the alien applies for a change of status or adjustment of status after 30 days but before 60 days from entry, the USCIS may assume that he/she had a “preconceived intent” to enter as non-immigrant. However, the assumption may be rebutted by the applicant with evidence showing change of circumstances.

3- It is not a guarantee if the alien applies for change of status after 60 days of entry into the US, the USCIS may not consider the application negatively.

It is advisable to follow time restrictions for each visa.

Marian Moore – Social Media Manager

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