By: Geoffrey J. Lamoureux
To obtain and maintain nonimmigrant status in the United States, a person must intend to engage in activities consistent with that status. For example, a visitor must intend to engage in tourist activities, and a student must intend to pursue a full-time course of study.
When a person maintaining a nonimmigrant status would like to change the nature of her stay, she can either leave the United States and apply for the desired status abroad or apply to change status without leaving the United States.
This article discusses the latter option of changing status without leaving the United States.
In general, an application to change status must be filed before the applicant’s current status expires. Nevertheless, an untimely filing may be excused as a matter of discretion if the applicant shows: (a) the failure to timely file was due to extraordinary circumstances beyond the applicant’s control and the delay was commensurate with the circumstances, (b) the applicant has not otherwise violated her nonimmigrant status, (c) the applicant is a bona fide nonimmigrant, and (d) the applicant is not the subject of removal proceedings.
An applicant who timely files a non-frivolous application for change of status may remain in the United States while the application is pending, even if adjudication extends beyond the expiration of her current stay.
Once the change of status is approved, the applicant is issued the new status, dating back to the time the previous stay expired. Accordingly, upon approval, the applicant will be considered to have continuously maintained status. However, if the application is denied, the applicant will not be considered to have maintained status while the application was pending, although she will not accrue any unlawful presence time while the application was pending.
On the other hand, if an application for change of status is denied because: (a) it was determined to be frivolous, (b) the applicant engaged in unauthorized employment, or (c) the applicant failed to maintain her status before it was filed, then all the time after the applicant’s previous stay expired will be counted as unlawful presence.
An application for change of status may also be seen by U.S. Citizenship and Immigration Services (“USCIS”) as an attempt to circumvent the normal visa issuing process abroad. USCIS may therefore determine that the applicant misrepresented her intent at the time of entry or application for her initial visa and deny the change of status.
If USCIS denies the application for change of status, it will issue a written decision. A denied applicant may file a motion to reopen or reconsider within 30 days of the decision. Unlawful presence will begin to accrue from the date of the denial, and the filing of a motion to reopen or reconsider does not extend the period of authorized stay.
In determining when an authorized period of stay ends, it is important to note the difference between the expiration date of a nonimmigrant visa and the expiration date of a period of authorized stay, which is indicated on an applicant’s I-94. An I-94 database entry is established upon entry to the United States and may be accessed online. The expiration date on the I-94 rather than the expiration date of the visa determines the end-date of an authorized period of stay.
An applicant who has been maintaining status may continue in that status even if the application is denied, so long as she is otherwise eligible to retain the initial status. If a change of status is denied, the applicant may still apply for the desired status at a U.S. consulate abroad if otherwise eligible.
Once a change of status is filed, travel outside the United States results in abandonment of the application. However, the underlying petition may still be approved. For example, if an applicant travels while a change of status to an H-1B work visa is pending, the subsequent approval of the H-1B petition will be valid and may be used to apply for the visa at a consulate abroad.
The requirements of a change of status application are filled with legal and practical nuances, and the implications of a faltered application are grave. A finding of preconceived intent and misrepresentation, a failure to maintain status, or an untimely application may permanently damage an applicant’s future immigration prospects. Therefore, it is important to consult with experienced and knowledgeable immigration counsel as part of any application to change status.
