Change of Nonimmigrant Status

Change of Nonimmigrant Status

 

Introduction: Change of Nonimmigrant Status

Most categories of nonimmigrants in lawful status are eligible to change from one nonimmigrant classification to another. For a change of status application to be approved, the alien must meet the requirements for the status that he or she is seeking to change to. Additionally, in order to petition for a change of status, the nonimmigrant must be maintaining a valid nonimmigrant status. However, the United States Citizenship and Immigration Services (USCIS) has the nunc pro tunc discretion to approve a change of status that was filed late or filed after the nonimmigrant failed to maintain his or her previously accorded status. In this article, we will examine the statutes, regulations, and agency guidance regarding change of nonimmigrant status. If you are interested in learning about a specific nonimmigrant category, please search our website to find the information that you are looking for.

Statute: Change of Nonimmigrant Status

Under section 248 of the Immigration and Nationality Act (INA), most nonimmigrant categories are eligible for change of status. Section 248(a) permits a nonimmigrant in one nonimmigrant classification to change status to another nonimmigrant classification if he or she:

Has been lawfully admitted to the United States as a nonimmigrant;
Is maintaining lawful nonimmigrant status;
Is not inadmissible under section 212(a)(9)(B)(i) [unlawful presence bars] or has had such inadmissibility waived under section 212(a)(9)(B)(v).

However, the following classes of nonimmigrants are ineligible to change status under section 248(a)(1)-(4):

1. An alien in C, D, K, or S status;
2. An alien in J status who came to the United States or acquired J visa classification in order to receive graduate medical training;
3. An alien in J status (other than a graduate medical student) who is subject to the two-year foreign residence requirement [section 212(e)] and has not received a waiver, unless he or she applies for a change of status to the A or G visa category;
4. An alien admitted as a nonimmigrant visitor without a visa under section 212(l) [nonimmigrant visitor to Guam or the Northern Mariana Islands] or under section 217 [Visa Waiver Program].

However, under section 248(b) of the INA, a nonimmigrant listed in section 248(a)(1)-(4) may change to T or U status if he or she is eligible.

Change of Status Rules and Procedures

Procedures for change of nonimmigrant status are implemented through 8 C.F.R. 248.1.

Requirement for Maintenance of Status and Late Filing Exception

Section 248(a) of the INA requires that an alien seeking change of status be maintaining his or her previously accorded nonimmigrant status. This requirement is developed in 8 C.F.R. 248.1(b). The regulation states that in order for change of status to be approved, the alien must have maintained his or her previously accorded status before the petition for change of status is filed. This means that, in general, an application for change of status must be filed before the alien's previously accorded status expires and while the alien is maintaining such status. Change of status may be denied where the expiration date on the alien's period of authorized stay has not expired, but where he or she failed to maintain status. However, please note that these restrictions do not apply to those seeking to change to V nonimmigrant status under 8 C.F.R. 214.15(f) in addition to those seeking to change to T or U status as discussed in the previous section.

In the precedent decision in the Matter of Lee, 11 I&N Dec. 601 (RC 1966) [PDF version], it was held that an alien admitted on H1 status was ineligible for change of status because he failed to engage in the employment for which his status was authorized and therefore failed to maintain his previously accorded nonimmigrant status. In another precedent decision in the Matter of Kyriakarakos, 10 I&N Dec. 646 (RC 1963) [PDF version], it was held that an alien was ineligible for change of status because he had violated his previously accorded status by engaging in unauthorized employment.

The regulation in 8 C.F.R. 248.1(b) states that under limited circumstances, the USCIS may exercise nunc pro tunc discretion to approve the change of status application of an alien who failed to maintain his or her previously accorded nonimmigrant status or who files for a change of status after the expiration of his or her previously accorded nonimmigrant status. In order to approve such a change of status application, 8 C.F.R. 248.1(b) requires the applicant or petitioner to demonstrate the following:

1. The failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or the petitioner, and USCIS finds the delay commensurate with the circumstances;
2. The alien has not otherwise violated his or her nonimmigrant status;
3. The alien remains a bona fide nonimmigrant; and
4. The alien is not the subject of removal proceedings under 8 C.F.R. 240.

Thus, the alien must not have otherwise violated his or her nonimmigrant status (e.g., by having engaged in unauthorized employment), must remain a bona fide nonimmigrant, and must not be in the midst of removal proceedings. If those three conditions are satisfied, the alien must demonstrate that the late filing is due to extraordinary circumstances. Whether an alien can demonstrate extraordinary circumstances will depend on the facts of the case. However, note that USCIS not only requires the demonstration of extraordinary circumstances, but also that the delay is reasonable in light of the demonstrated circumstances. Accordingly, if an alien is seeking a change of status after his or her previously accorded status expired or lapsed, it is imperative to act expeditiously.

In a precedent decision in Eyoum v. INS, 125 F.3d 889 (5th Cir. 1997) [PDF version], the Fifth Circuit held that an alien who was seeking change of status after his previously accorded nonimmigrant status expired would be ineligible even if he demonstrated “extraordinary circumstances” because he had violated his previously accorded nonimmigrant status by “engaging in commerce while in the United States on a pleasure visa.”

However, note that an alien may remain in the United States after the expiration of his or her previously accorded status due to a timely filed change of status application. Such an alien will not be subject to the visa overstay provisions of 222(g). This DOS policy is discussed in 9 FAM 302.9-10(B)(6). Nevertheless, if the change of status application is denied, section 222(g) will attach. To learn about section 222(g) and visa overstays, please read our full article [see article].

Bridge to Circumvent Normal Immigration Procedures Impermissible

In the precedent decision in the Matter of Kim, 13 I&N Dec. 316 (RC 1968) [PDF version], it was held that an alien who sought to change from J1 status to A2 status was ineligible to subsequently change to F1 status because the alien had entered the United States in a status which would not have permitted the change to F1. Accordingly, the A2 status was seen as a bridge between J1 and F1 status and looked upon as an attempt to circumvent the normal procedures for change of status. There is a similar precedent decision in the Matter of Encarnado, 10 I&N Dec. 620 (RC 1963) [PDF version].

Change to V Nonimmigrant Status

V nonimmigrant status is authorized under section 101(a)(15) of the INA. In order to obtain a V nonimmigrant visa, the beneficiary of a family-sponsored immigrant visa petition filed on or before December 21, 2000 who has had an adjustment of status or immigrant visa application pending for 3 years or more is eligible for a V nonimmigrant visa. In order to change to V status, the alien must be admissible to the United States (except under sections 212(a)(6)(A), (A)(7), and (a)(9)(B) of the INA) and must submit the Form I-693 (without vaccination supplement) along with the application [see medical examination requirement for AOS].

Change to and From Nonimmigrant Student Status

Under 8 C.F.R. 248.1(c), a nonimmigrant is not ineligible to change to F1 or M1 status solely on account of starting attendance at the school before submitting the change of status application (unless he or she is not a bona fide nonimmigrant, see 8 C.F.R. 248.1(b)(3)). However, under 8 C.F.R. 248.1(c)(3), an applicant for change from B1 or B2 visitor status to F1 or M1 student status is not permitted to enroll in classes before the change of status application is approved. To learn about changing from B1 or B2 visitor to F1 or M1 student status, please see our full article [see article].

However, also under 8 C.F.R. 248.1(c), USCIS will deny a change of status application to M1 if it appears that the application is being made in order to subsequently change status to that of an H visa temporary worker or trainee. Under 8 C.F.R. 248.1(d), an application to change from M1 status to H status will be denied if the student meets the education or training requirements for H status based on what he or she did while on M1 status.

Under 8 C.F.R. 248.1(c), an alien is prohibited from changing status from M1 to F1.

F1 students are permitted to change status during the 60-day grace period granted after the completion of F1 status (including after competition of optional practical training).1 Under 8 C.F.R. 214.2(j)(1)(ii) and (iv), J1 exchange visitors who are not subject to the 2-year foreign residency requirement may change status during the 30 day grace period after the completion of the exchange program.

Change to N Status

Under 8 C.F.R. 248.1(e), an application for change of status to the N nonimmigrant classification shall not be denied on account of the applicant being an intending immigrant.

Filing a Change of Status Petition

Under 8 C.F.R. 248.3(a), if a nonimmigrant seeks to change his or her status to one of the following classifications, the petition for the change of status must be filed by an employer:

E (E1 or E2)
H (H1C, H1B, H2A, H2B, or H3)
L (L1)
O (O1 or O2)
P (P1, P2, or P3)
Q (Q1)
R (R1)
 TN

8 C.F.R. 248.3(b)(1) and (b)(1)(ii) explain that if the nonimmigrant seeks to change his or her status to any nonimmigrant classification that is not listed in 8 C.F.R. 248.3(b), the petition must be filed by the applicant. Under 8 C.F.R. 248.3(b)(1)(i), this includes dependents of principal beneficiaries listed in 8 C.F.R. 248.3(a). 8 C.F.R. 248.3(b)(2) explains that more than one person may be included in such an application if the co-applicants are all members of a single family group.

The application for a change of status is filed on the Form I-539. It must be filed with evidence that demonstrates eligibility for the new nonimmigrant classification. Applicants seeking to change status to the A or G categories must also file a Form I-566.

Diplomatic Visas

Under 8 C.F.R. 248.3(c), an alien applying for change of status to the A or G diplomatic categories must have the change of status application accompanied by the appropriate endorsement from the Department of State (DOS) recommending the change of status. A favorable recommendation for change of status from DOS is required for the change of status to be approved. The application for the change of status of the principal and any immediate family members shall be processed without fee.

No Change of Status Required

Under 8 C.F.R. 248.3(e)(1), an alien who enters the United States as a B1 visitor for business and who intends to remain in the United States temporarily during his or her period of authorized admission as a B2 visitor for pleasure is not required to obtain a change of status. The immediate family member of an alien on A, G, E, H, I, J, or L status who is classified as a derivative beneficiary under the same section may attend school in the United States so long as the principal alien maintains his or her nonimmigrant status in the same category.

S Visas

8 C.F.R. 248.3(h) states that in order to change a nonimmigrant to S status, “an eligible state or federal law enforcement agency, which shall include a state or federal court or [U.S.] Attorney's Office, may seek to change the nonimmigrant classification of a nonimmigrant lawfully admitted to the United States [except those prohibited from changing status] , to that of an alien witness or informant [under] section 101(a)(15)(S) of the INA. Under 8 C.F.R. 248.3(h)(1), in order for a change of status to S status to be approved , the Assistant Attorney General, Criminal Division, must certify the request for S nonimmigrant classification and forward the law enforcement agency's request on a to the Department of Homeland Security (DHS). If the change of status application is denied, the Assistant Attorney General will have 7 days to object. The alien shall have no right of appeal from a denial.

Healthcare Professionals

Under 8 C.F.R. 248.3(i), an application for a change of status to perform labor in a healthcare operation must either be filed by the alien or on behalf of an alien seeking to perform such services included in 8 C.F.R. 212.15(c). These services include:

1. Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses;
2. Occupational Therapists;
3. Physical Therapists;
4. Speech Language Pathologists and Audiologists;
5. Medical Technologists (Clinical Laboratory Scientists);
6. Physician Assistants;
7. Medical Technicians (Clinical Laboratory Technicians).

The change of status application must include a certificate of the alien's qualifications as described in 8 C.F.R. 212.15(f) or a certified statement as described in 8 C.F.R. 212.15(h) for certain eligible nurses.

H and L Visas (Including H1B “Cap Gap”)

There are limitations on how long an alien may stay in H1 (6 years) or L1 (7 years for L1A, 5 years for L1B) status. If a nonimmigrant in any of those categories reaches the maximum, he or she may not change to the other status (e.g. H1 to L1 or L1 to H1). The 6-year H1B limit also applies to H4 dependents under 8 C.F.R. 214.2(h)(9)(iv). However, H4 and L2 dependents may change status to principal H or L status because time spent in a derivative status does not count against time spent in the principal status.2 An H4 may also change to H2 or H3 status. An H1 or L1 visa holder may change to H4 or L2 status if eligible.

If an alien applies for a change to H1B status after the H1B cap is reached, he or she will be treated as a visa overstay (subject to section 222(g)) if his or her status expires before the beginning of the next fiscal year when new H1B numbers are available.3 If a petition filed before the cap is reached is unadjudicated, it will be given a start date at the beginning of the following fiscal year at the earliest under 8 C.F.R. 214.2(h)(8)(ii)(E). However, F1 and J1 applicants for change to H1B status may have their duration of status automatically extended after a timely application for change of status so that there is no “cap gap.”

E Visas and Dual Nationality

Please note that for purpose of change of status, the alien's operative nationality is the nationality under which he or she obtained a nonimmigrant visa. This is of particular relevance for persons seeking E1 or E2 visas which require that the applicant be of the nationality of a specific treaty country. To learn more about this, please read our article about the Matter of Ognibene, 18 I&N Dec. 425 (BIA 1983) [PDF version] [see article].

Change of Status Procedures

Under 8 C.F.R. 248.3(f), if a change of status application is granted, the applicant will receive notification and be granted a new period of time to remain in the United States without having to file a separate application and fee for an extension of stay. Under 8 C.F.R. 248.3(g), if the application is denied, USCIS will notify the applicant of the denial. There are no grounds for appeal from the denial of an application for change of status under 8 C.F.R. 248.

If an alien with a pending change of status application departs during the pendency of such application, this will generally be considered to constitute the abandonment of the change of status application.4 If the alien has remained in the United States past the expiration date of his or her previously accorded status due to a timely filed change of status application, departure may trigger the cancellation of the previously accorded visa or status under section 222(g) of the INA [see visa overstays]. However, if an alien who would be subject to 222(g) due to abandonment can demonstrate that the departure was due to “extraordinary circumstances,” he or she may still be eligible to be admitted to the United States under section 222(g)(2)(B).

If an alien departs after change of status is granted but before the new status takes effect, he or she may do so without negating the effective date of the new status.5

Under AFM 30.3(d), if a change of status application is filed to change status to a nonimmigrant work category (E, H, L, O, P, Q, R, or TN), the Form I-129 petition will be adjudicated before the change of status application. If the Form I-129 is approved, USCIS will then determine if the change of status application is approvable. If the Form I-129 is approved but the change of status is denied, the alien will be required to obtain the immigrant visa from a consulate abroad.

Conclusion: Change of Nonimmigrant Status

Change of nonimmigrant status allows a nonimmigrant to change from one nonimmigrant status to another without having to return abroad to obtain a new nonimmigrant visa. If a nonimmigrant is seeking change of status, he or she should consult with an experienced immigration attorney to discuss the particulars of the given situation. This is especially important if the nonimmigrant may be ineligible for adjustment of status due to his or her previously accorded status having lapsed or a late filing.

_____________________

  1. Memo, Pearson, Exec. Assoc. Comm. Field Operations, HQ 70/23.1 RS-P (Aug. 19, 1988), reprinted in 75 No. 32 Interpreter Releases 1147, 1167 (Aug. 24, 1998)
  2. Memo, Aytes, Assoc. Dir., Domestic Operations, USCIS HQPRD 70/6.2.12, AD 06-29 (Dec. 5, 2006)
  3. Memo, Pearson, Ex. Assoc. Comm. (HQ 70/23.1RS-P) (Aug. 19, 1998), reprinted in 75 No. 32 Interpreter Releases 1148, 1165, (Aug. 24, 1998)
  4. Memo, Cook, Acting Assc. Comm. Program, HQ 70/6.2.9 (June 18, 2001), reprinted in 78 No. 33 Interpreter Releases 1378, 1395 (Aug. 27, 2001)
  5. Letter, Hernandez, Chief, Business and Trade Services Branch, Adjudications, USCIS, HQOPRD 70/6.2 (Aug. 18, 2004), publiched on AILA InfoNet at Doc. No 05042565

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 856-59, 887, Print. Treatises & Primers.