Those who enter the US for a temporary stay may find themselves in a situation that calls for changing their nonimmigrant status to enable them to stay longer and engage in activities other than that initially authorized. For instance, a student (F-1) may be offered a job or a tourist (B-2) may wish to pursue further studies in a US university.
A foreigner who seeks a change of nonimmigrant status should be able to establish that there was no “preconceived intent” to circumvent normal visa procedures abroad. The most common example of this is a tourist who seeks to change status to a student or temporary worker.
Obtaining a B-2 at a US consulate abroad is a relatively short and uncomplicated process. This is why the US Citizenship and Immigration Services (USCIS) closely examines circumstances that would lead to the conclusion that a visitor, for example, had misrepresented his/ her intentions to the US Embassy abroad to actually pursue studies.
Generally, if a visitor who applies for a change of status within 30 days after entry or visa issuance seeks employment or actually begins unauthorized work, the USCIS will presume that s/he misrepresented his/her intentions in obtaining a visa at the US Embassy abroad. In all likelihood, the change of nonimmigrant status will be denied.
Does the foreigner’s current status permit a change of status? There are several instances where a foreigner may not be allowed to change his/her nonimmigrant status. These include a foreigner who is in transit through the US without a visa; C (transit), D (crewman), K (fiancé[e]) or S (witness) visa holders; and J-1 visa holders subject to the 2-year foreign residency program.
Also, H or L temporary workers are not allowed to change status to another H or L category at the end of their maximum time limits. For example, an H-3 trainee cannot apply for a change of status to H-1B at the end of the 24-month maximum stay; or the L-1A manager or executive cannot apply for an L-1B (specialized knowledge worker) or H-1B (specialty occupation worker) at the end of his/ her 7-year maximum stay.
If these foreigners are otherwise eligible for another nonimmigrant classification, they may apply at a US consulate for a visa and seek reentry to the US.
Maintaining Current Status
Has the foreigner maintained valid status? This is a common pitfall for those who wish to change to another nonimmigrant status, because there are several cases where the foreigner’s period of authorized stay in the US has already expired. The change of status application must be filed before the date of authorized stay is up, which is normally indicated in the I-94 card.
A late application to change status may be accepted by the USCIS in the very rare case that the timely filing was prevented by “extraordinary circumstances” beyond the foreigner’s control. In addition to establishing such extraordinary circumstances, the applicant must be a bona fide nonimmigrant; must not have otherwise violated his/ her immigration status; and must not be under removal proceedings.
If the application for change of status is denied, the USCIS will issue a written decision that indicates the basis for the denial. The denial may not be appealed although the application may file a motion to reopen or reconsider his/ her application.
If the foreigner is still in valid nonimmigrant status at the time of the denial, s/he still may be allowed to stay in the US in his/ her original status upon a specific request made when the change of status application is filed. If the foreigner is no longer in valid status at the time of the denial, his/ her attorney may request for a 15 to 30 day period to leave the US.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com