Change of Status – Changing From One Non-Immigrant Visa to Another
There are two general types of visas available to foreign nationals wishing to travel to the United States: a non-immigrant visa (NIV) or an immigrant visa (IV). The difference between the two is that on an immigrant visa, the alien gains lawful permanent resident status upon entry (aka gains a Green Card). However, every alien on an NIV is subject to the underlying requirements and restrictions of their NIV status. U.S. immigration law allows for nonimmigrant aliens to change their status to another type of nonimmigrant visa while they are in the United States, as long as they meet the requirements for the visa being sought. This process is generally referred to as a “change of status” (COS). It is important to keep in mind that this is a completely different process than if a nonimmigrant were to adjust their status to that of legal permanent resident, otherwise known as an “adjustment of status” (AOS). For more information on AOS, please click here.
There are more than 40 different kinds of NIV categories. The following nonimmigrant categories are NOT allowed to change their nonimmigrant status:
- C- Alien in Transit;
- D- Crewman;
- K-1 or K-2- Fiancé(e) or Dependent of Fiancé(e);
- S- Witness or Informant;
- TWOV- Transit without Visa; and
- Visa Waiver Program- WT/WB status.
The following nonimmigrant categories have certain restrictions concerning their ability to request a COS:
- J-1- Exchange Visitor. A J-1 subject to the 2 year foreign residence requirement cannot change status, with certain exceptions; and
- 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 the H classification.
Requests for a change of status must be filed on the form designated by USCIS with the required application fee. The application procedure depends on which type of nonimmigrant status the alien wishes to change to. If they are seeking change to an employment-based visa category, the alien’s prospective employer should file a Form I-129 (Petition for a Nonimmigrant Worker) before their Form I-94 expires. The Form I-129 may function as both the application for the type of work classification and the application for COS. You may download on the USCIS website under Form I-129. If the alien is seeking to change to a non-immigrant category that is not a working visa, they should file Form I-539 (Application to Extend/Change Nonimmigrant Status). For example, if they were to change from B-1 to F-1 the alien should file a Form I-539. You may download Form I-539.
Please keep in mind that all applications for COS must be made before the alien’s previous status has expired. If an alien’s status expired before they filed a COS application with the USCIS, then they are considered “out of status” and are no longer eligible to change their status. Processing times vary, but the USCIS recommends applying no later than 60 days before the I-94 expiration date.
Aliens applying for a COS should also be aware that they will remain in valid non-immigrant status when their I-94 expires if they have already applied to change their non-immigrant status. If their COS application was filed in a timely manner (i.e. before their current status expires), then they will be able to legally stay in the United States while their COS application is pending, although not in their original status.
Change of Status and the 30/60 Day Rule
An issue that may arise when a NIV holder submits a change of status application is whether the alien’s original NIV application was based on fraudulent “pre-conceived intent.” Usually, a person cannot have a preconceived intent to enter the U.S. for a purpose different from that permitted under his or her particular NIV category. With regards to the COS application, the USCIS often applies the Department of State’s 30/60 Day Rule as guidance to prevent fraudulent pre-conceived intent. The only NIV categories that are exempt from this rule are those that allow dual-intent, which are the H-1, O-1 L-1, P, and K categories. You can find details about how the USCIS is likely to treat COS applications based upon their application of the 30/60-Day Rule below:
- If an alien files an immigration petition or applies for an adjustment of status within 30 days’ entry into the United States, the USCIS would likely find that the alien entered with “fraudulent intent” to remain in the U.S. and the non-immigrant visa would be classified as fraudulently obtained under the laws.
- If the alien applies for a change of status or adjustment of status after 30 days but before 60 days from entry, the USCIS could view the change or adjustment with an assumption that he/she had a “preconceived intent” to enter as a non-immigrant. However, the assumption may be rebutted by the applicant with evidence showing a change of circumstances.
- While it is not a guarantee, if the alien applies for the change of status or adjustment status after 60 days of entry into the U.S., the USCIS may not look upon the application negatively.
Generally, a good rule of thumb is to follow the time restrictions allotted to each visa.