Extend Nonimmigrant Status in the United States

 

Overview of Nonimmigrants Applying for Extension of Stay in the United States

Extension of StayPeople in the United States on nonimmigrant visas are often eligible to apply for an extension of stay from the admitted-until date on their I-94 forms, where if approved by the U.S. Citizenship and Immigration Services (USCIS), they will be allowed to stay in the United States for an extended period under a specific category.

Conditions a Holder of a Nonimmigrant Visa Must Satisfy to be Eligible for an Extension of Stay

In order to be eligible for an extension of stay, a holder of a nonimmigrant visa must have been lawfully admitted to the United States as a nonimmigrant, not have committed any act that would make him or her ineligible for an immigration benefit, and must have nothing besides the impending expiration of status that would require him or her to depart the United States.

In addition, the person applying for an extension of stay must not be from one of the following categories in order to be eligible for an extension of stay:

  • C (Alien in Transit)
  • D (Crewman)
  • K-1 or K-2 (Fiancé(e) or Dependent of Fiancé(e))
  • S (Witness or Informant beyond a total of 3 years)
  • TWOV (Transit Without Visa)
  • WT or WB (Visa Waiver Program)

Rules and Advice for Filing for Extension of Stay

It is very important for eligible applicants for an extension of stay to apply before the expiration date the I-94 form, because it is very rare for late applicants to be granted an extension of stay. Late applicants will have to prove that there were circumstances beyond their control that prevented them from applying for an extension of stay on time. To avoid complications, USCIS recommends that applicants apply at least 45 days before their duration of stay expires.

Even if the applicant is not ineligible for any of those reasons, there is no guarantee the extension will be granted. Each extension of stay application is evaluated on its own merits.

So long as the nonimmigrant applicant has a pending application that was made before they were out of status, they will not be considered to accrue unlawful presence in the United States for the purposes of inadmissibility.1 Furthermore, if the application for extension of stay is approved, the applicant's presence while it was pending will be considered to have been lawful. If it is denied, the applicant will have to apply for a new visa in his or her home country to reenter the United States.

Depending on the nonimmigrant classification, the nonimmigrant applicant may still be eligible to work for up to 240 days after the expiration date on the I-94 form while his or her application is pending. The nonimmigrant applicant will no longer eligible to work beyond those 240 days or if his or her application is denied.

Applying for an Extension of Stay in an Employment-Based Category (I-129 Petition)

Any nonimmigrant visa-holders in the following categories who want to apply for an extension of stay will need their employer file a Form I-129 Petition for Nonimmigrant Worker before the expiration date on the I-94 form. Each of these categories has its own requirements and different limits for extensions of stay, so nonimmigrants who are considering applying should consult with an immigration attorney for details and procedures.

  • E-1 or E-2 (Treaty Traders, Treaty Investors, and Employees of Treaty Traders and Treaty Investors)
  • E-3 (Skilled Professionals from Australia)
  • H-1B, H-2A, H-2B, or H-3 (Temporary Skilled or Unskilled Workers and Trainees)
  • L-1A or L-1B (Intracompany Transferees)
  • O-1 or O-2 (Aliens with Extraordinary Ability and Their Assistants)
  • P-1, P-2, or P-3 (Athletes and Entertainers)
  • R-1 (Religious Workers)
  • TN-1 or TN-2 (Canadians and Mexicans under NAFTA)

When people applying for an extension of stay in an employment-based category who have spouses or children under the age of 21 who also want an extension of stay, those family members may each file a Form I-539, Application to Extend/Change Nonimmigrant Status. USCIS recommends that this is filed along with the I-129 petition; however, because they are still separate applications, each one must be completed in full.

Other Nonimmigrants Who Should File I-539 Forms for Extension of Stay

In addition to spouses and children of nonimmigrants applying for an extension of stay in an employment-based category, people in the following categories should file I-539 petitions for an extension of stay.

  • A-3 (Attendants, Servants, Personal Employees of Diplomatic and Other Government Officials and Immediate Family)
  • B-1 and B-2 (Visitors for Business and Pleasure)
  • E-1 and E-2 (Dependents of Treaty Traders, Treaty Investors, and Their Employees)
  • E-3 (Dependents of Skilled Professionals from Australia)
  • G-5 (Attendants, Servants, Personal Employees of Foreign Government Officials and Immediate Family)
  • H-4 (Dependents of Temporary Skilled or Unskilled Workers and Trainees)
  • K-3 and K-4 (Spouse of U.S. Children and Minor Child Accompanying/Following to Join)
  • L-2 (Dependents of Intracompany Transferees)
  • M (Vocational Students and Dependents)
  • N (Parents and Children of Certain People Who Have Been Granted Special Immigrant Status)
  • NATO-7 (Attendants, Servants, Personal Employees of NATO Representatives, Employees and Immediate Family Members)
  • O-3 (Dependents of Aliens with Extraordinary Ability and Their Assistants)
  • P-4 (Dependents of Athletes and Entertainers)
  • R-2 (Dependents of Religious Workers)
  • All “V” Categories (Certain Second-Preference Beneficiaries)
  • TD (Dependents of Canadians and Mexicans under NAFTA)

Nonimmigrants Who Can File Form I-539 Application to Extend/Change Nonimmigrant Status using USCIS ELIS

USCIS ELIS is a web-based system that makes it easier for certain nonimmigrants to apply for an extension of stay. The following categories of nonimmigrant visa-holders are eligible to apply for extensions of stay on USCIS ELIS:

  • B-1,B-2, F-1, M-1, or M-2 students
  • F-1 students who have date specific visas that require completion of a course of study by a specific time
  • Note that F-1 students admitted for the duration of their status should instead talk to their Designated School Official
  • Nonimmigrant visa-holders may use USCIS ELIS to apply to change status to B-1, B-2, F-1, F-2, J-1, J-2, M-1, or M-2 students. However, an M-1 student cannot change his or her status to F-1 student.
  • F-1, F-2, M-1, and M-2 students may apply to reinstate their former status.

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  1. 212(a)(9)(B) INA