Maintaining Status.
(a) General . Section 101(a)(15) of the INA specifies various classes of persons admissible to the U.S. as nonimmigrants. Requirements for admission in each category are discussed 8 CFR 214 and in Chapter 15.4 of the Inspector’s Field Manual . This chapter will discuss general requirements for maintaining status, changing status, and obtaining extensions of stay. Requirements for maintaining and changing status which apply only to specific nonimmigrant classes are discussed in Chapters 31 through 37 and Chapter 15 of the Inspector’s Field Manual . Matters relating to parole of aliens are contained in Chapter 16 of the Inspector’s Field Manual , and matters relating to Temporary Protected Status are contained in Chapter 38 of this manual.
(b) Activities Consistent with Status . A nonimmigrant may engage only in activities consistent with his or her status. In general, the filing of an application for a different status or even the approval of a petition (for example an I-129 petition to accord H, L, O or P status), does not constitute authorization to engage in the activities permitted in the new status. (However, under certain conditions, an alien who is already in H-1B status may commence working for a new employer upon the filing of a new petition by that new employer.) With regards to a change of status applicant, it is only the formal approval of the change of status application by USCIS that constitutes authorization to engage in activities consistent with that new statu s. An alien who, prior to approval of a change of status, engages in activities not consistent with his or her present status is at risk fo being found to be in violation of status in the event the application is denied, although approval is often retroactive to the date of the original application [See Matter of Teberan , 15 I&N Dec. 689 (BIA 1976), and Matter of Dacanay , 16 I&N Dec. 238 (BIA 1977)]. However, in accordance with 8 CFR 248.1(c) , an alien may be granted a change of status to that of F-1 or M-1 student even though he or she may have begun attending the school even before the application was submitted.
There is a significant body of information available concerning what activities are or are not appropriate for particular visa classifications. The B-1 and B-2 classifications have historically been the object of many such interpretative discussions. If you have any questions concerning particular activities, you should consult available resources including: 8 CFR 214.2; Chapter 15.2 of the Inspector’s Field Manual ; the Department of State’s Foreign Affairs Manual (FAM), and precedent decisions.
(c) Voluntary Departure vs. Nonimmigrant Status . Voluntary departure is not a nonimmigrant status. It is, however, regarded as an authorized period of time for purposes of section 212(a)(9). Accordingly, time spent in voluntary departure does not add to an alien’s unlawful presence. For example, a B-2 nonimmigrant files for an extension after his stay expires. The extension is denied and the alien is granted 15 days of voluntary departure. In calculating unlawful presence, count as unlawful the days between the expiration of the B-2 status and the issua nce date of the Form I-210 granting voluntary departure, as well as any time after the voluntary departure expired, but do not count the 15 day voluntary departure period itself. Voluntary departure is discussed in 8 CFR 240.25 .
Although voluntary departure time is not counted when calculating unlawful presence, an alien who has been given a period of voluntary departure is not considered to be maintaining status for purposes of receiving an extension or status change [See Matter of Lennon , 15 I&N Dec. 9 (BIA 1974).].
(1) Counting of Unlawful Presence for Nonimmigrants . An alien who remains in the United States beyond the authorized period of stay is unlawfully present and becomes subject to the 3- or 10-year bar to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants:
(A) Nonimmigrants Admitted until a Specific Date . Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the authorized period of admission expires, as noted on Form I-94, Arrival/Departure Card.
(B) Nonimmigrants Admitted Duration of Status (D/S) . Nonimmigrants admitted to the United States for D/S begin accruing unlawful presence on the date USCIS finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regardin g voluntary departure as a period of stay authorized by the Attorney General.
(2) Authorized Period of Stay . USCIS has also designated the following as authorized periods of stay:
• Voluntary departure;
• Refugee status;
• Asylee status;
• Grants of withholding or deferral of removal under the United Nations Convention Against Torture;
• Legalization and special agricultural worker applications for lawful temporary residence which are pending through an administrative appeal;
• Grants of withholding or suspension of deportation, or cancellation of removal;
• Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202(b) of Pub. L. 99-603 through administrative appeal;
• Grants of Temporary Protected Status and Deferred Enforced Departure;
• Applications for adjustment of status under section 245 of the Act (including section 245(i)), and registry applications under section 249 of the Act, if properly filed with INS or USCIS. The period of stay authorized by the Attorney General continues if the application is denied and renewed in proceedings, through review by the Board of Immigration Appeals (BIA). The alien must, however, be eligible to renew the denied application in proceedings and have a legal basis for renewing that application; and
• Certain pending applications for extension of stay or change of status. See sections (d)(3) and (d)(4) of this chapter.
(3) Requirements for Authorized Period of Stay with Respect to Pending Change of Status and Extension Applications .
(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) .
(B) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and
(C) The change of status or extension application has been pending with INS or USCIS for more than 120 days after the date the I-94 expired.
(4) Effect of Decision on Unlawful Presence and Tolling .
(A) Approved Applications . If USCIS approves an E/S or C/S application, the alien will be granted a new authorized period of stay, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted (or to which the alien had previously be changed) pursuant to 8 CFR 214.2. No unlawful presence accrues. This applies to aliens admitted until a specific date and aliens admitted D/S.
(B) Denied applications .
(i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment . If the C/S or E/S application is denied because it was untimely or frivolous, or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, provided the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision.
(ii) Denial of Late Applications . If the application was filed late and was denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for denial. For aliens admitted D/S, unlawful presence begins accruing on the date of denial.
(5) Voluntary Departure as an Authorized Period of Stay . USCIS has designated voluntary departure as an authorized period of stay. However, any unlawful presence that accrued before the date the voluntary departure was actually granted is not eliminated. And, if the alien does not make a timely departure, the counting of unlawful presence resumes on the day after the required departure date and continues on until the alien finally departs. Moreover, the alien becomes subject to civil penalties and is ineligible for any further voluntary departure or other forms of re lief, such as adjustment of status, registry, and cancellation of removal.
(6) Effect of Departure .
(A) Applicants for Nonimmigrant Visas . Date certain nonimmigrants who file an application for change of status or extension of stay who depart the United States while the application is pending and subsequently apply for another nonimmigrant visa must establish, to the satisfaction of the consular officer, that the application was timely filed and that it was not frivolous. The requirement that the application was timely may be established through the submission of evidence of the date the previously authorized stay expired, together with a co py of a dated filing receipt, a canceled check payable to INS or USCIS for the E/S or C/S application, or other credible evidence of a timely filing. To be considered non-frivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose. In determining whether an E/S or C/S application was non-frivolous, DOS has instructed consular posts that it is not necessary to make a determination that INS or USCIS would have ultimately ruled in favor of the alien. If the consular officer finds that the alien qualifies for a visa in the same category as the visa classification that was sought in the abandoned E/S or C/S application, the consular officer may presume that the E/S or C/S application was not frivolous. The question then turns to whether the alien engaged in unauthorized employment before the E/S or C/S application was filed or while it was pending. Consular officers will determine this through the routin e course of questioning. Consular officers may also review and consider evidence of an alternate means of support during the time in which the alien was not authorized to work. If the consular officer determines that the application was timely filed, non-frivolous, and that the alien did not engage in unauthorized employment, the alien is not subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i) of the Act. See Inspector’s Field Manual Chapter 15.15 for a discussion of the effect of the alien’s departure on section 222(g). D/S nonimmigrants who depart the United States while an application for change of status or extension of stay is pending generally do not trigger the 3- and 10-year bars under section 212(a)(9)(B)(i) of the Act, unless a formal finding of a status violation has been made, and the alien has not been granted any other authorized period of stay, such as voluntary departure.
(B) Applicants for Admission at a Port of Entry (POE) . When a date certain nonimmigrant files an application for change of status or extension of stay and departs the United States while the application is pending, officers at POEs should use the same procedures followed by consular officers to determine whether the application was timely and non-frivolous, and whether the alien engaged in unauthorized employment. If the extension application was timely and non-frivolous and the alien did not engage in unauthorized employment, the alien is not subject to the 3- or 10-year bar to admission. [See Inspector’s Field Manual, Chapter 15.15 for the applicability to section 222(g) ].
___________________________________________ Extension of Stay for Nonimmigrants.
___________________________________________ Extension of Stay for Nonimmigrants.
(a) General . Except as stated below, a nonimmigrant admitted for a specified period of time may request an extension of his or her admission period in order to continue to engage in those activities permitted under the visa category in which he or she was admitted. General requirements (such as those relating to passport validity, waivers of inadmissibility, and posting of a bond) for an extension of stay are discussed in 8 CFR 214.1(a) . An application for an extension of stay is filed on Form I-129 , Petition for a Nonimmigrant Worker, or Form I-539 , Application to Extend/Change Nonimmigrant Status, as specified in 8 CFR 214.1(c) , depending upon the nonimmigrant classification of the applicant. Form I-539 is used primarily for B-1/B-2, A-3/G-5, and M-1/M-2 extensions, as well as for student reinstatements and extensions of some dependents not included on the I-129 extension for a principal alien. Form I-129 is used to extend nonimmigrants working for a specific employer.
(b) Limitations . Aliens in classes C, D, K, WT, WB, and TWOV are ineligible for an extension of stay.
(c) Use of Form I-539 for Extension of Stay .
(1) Initial receipting . The applicant must file Form I-539 with the service center having jurisdiction over his or her residence, except student (F or M) reinstatement requests, which are filed at local offices. Editions of Form I-539 prior to the most current edition should not be accepted for purposes of extension of stay. A single application may be filed by a family group, provided all family members hold the same status or derivative status.
(2) Preliminary Review . Preliminary review, in addition to general items discussed in Chapter 10.2, includes the following:
(A) The applicaton must be filed wit the office having jurisdiction. All I-539 extension requests must be filed at the appropriate service center except those relating to F/M student reinstatements.
(B) Aliens in B-1 or B-2 status must provide a statement explaining the purpose of the requested extension, departure arrangements and what, if any, effect the proposed extensions would have on his or her permanent residence.
(C) A-3 and G-5 aliens must submit an executed Form I-566, a letter from their employer detailing their job duties and evidence of the employee’s status (usually an I-94 copy). [See also Chapter 30.6 .]
(D) J nonimmigrants must submit a current IAP-66 covering the requested period of extension.
(E) Dependents of various temporary workers must submit evidence of the principal alien’s status (or evidence of a pending petition for such status).
(F) Students seeking reinstatement must submit evidence of eligibility, including financial information and a current I-20.
(G) (Chapter 30.2(c)(2)(G), revised 07-27-2005) .The applicaiton must contain the original or copy of the arrival portion of the applicant’s Form I-94, if any. Original I-94 forms are required in cases which are adjudicated at district offices. Copies may be submitted in cases which are adjudicated at service centers.
| Note 1: If I-94 copies are submitted even though originals were required, or vice versa, and the application will be adjudicated in CLAIMS, continue processing unless there is some apparent need to examine an original form. The CLAIMS-generated approval notice, Form I-797A includes a replacement I-94, which is to be attached to the original. Upon approval, return any original I-94 which was improperly submitted. |
| Note 2: If an extension applicant claims to have lost his or her I-94 , a separate Form I-102 , Application for Replacement/Initial Arrival/Departure Record should be filed. Although a CLAIMS-generated I-94 is issued in the course of adjudicating the extension application, the instructions indicate that it is to be attached to the original I-94 (or the replacement original). Verify arrival from TECS or, if no record can be found, obtain a copy of the applicant’s passport page containing the admission stamp. Please consult TECS manual for current instructions. |
(H) Dependents . When an application for an extension of a dependent is not filed concurrently with the principal alien, evidence of the principal’s status must accompany the application. This information may be verifiable in CLAIMS. There is no dependent status for Q-1 or TN nonimmigrants; however such dependents may separately qualify for nonimmigrant status, usually B-2.
| ( Note: The Q-3 nonimmigrant category pertains only to dependents of Q-2 nonimmigrants.) |
(3) Adjudication . Nonimmigrant extensions are generally simple to adjudicate. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to ensure the request is acted upon while it is still relevant. Timely adjudication is also important because an applicant is not considered to be maintaining status simply because an extension application is pending [See Matter of Teberan , 15 I&N Dec. 689 (BIA 1976)]. The following actions, in addition to the general steps described in Chapter 10.3 , are ordinarily required during the I-539 adjudication process:
(A) Determine If the Application Was Timely Filed . Although an application for extension of stay is ordinarily required to be submitted before the expiration of the applicant’s previously authorized period of stay, the adjudicator has discretion to grant an extension based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the appl icant is otherwise a bona fide nonimmigrant, and whether the applicant has been apprehended and placed in proceedings by the Service.
| Note 1: Issues surrounding the alien’s original entitlement to nonimmigrant status were explored by INS or CBP and Department of State officials at the time of initial admission and visa issuance (or, in the case of visa exempt aliens, by INS or CBP alone). Absent gross error, changed circumstances or new information, these should not be revisited in extension proceedings. However, if the adjudicator has strong reason to believe that the alien was not entitled to a nonimmigrant status in the first place, he or she may seek clarification from the applicant through correspondence or by requiring an interview at the appropriate local office. If it is established that the applicant was not entitled to the status initially, the application should be denied and (if appropriate) the information provided to the visa issuing post or port-of-entry through normal intelligence and liaison procedures. Additionally, the information may form the basis of an additional charge (under section 237(a)(1)) on the Notice to Appear initia ting removal proceedings. In extreme cases, where employee misconduct is suspected, the Office of Professional Responsibility should be advised. |
| Note 2: Inadmissibility Issues . At times, you may encounter an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and bee n granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien applied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspect ing officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension. |
(B) Verify Passport Validity . An applicant need not submit a valid passport with his or her application since Part 4 of the application contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the United States. [See 8 CFR 214.1.] This does not preclude the adjudicating officer from requiring submission of evidence of the validity of the passport, if the officer has reason to believe that the alien has falsely claimed that it is valid.
(C) Decide If a Favorable Exercise of Discretion Is Warranted . Applications for extensions of stay are matters solely within the administrative discretion of the director. Before approving an application for an extension, the adjudicator must be satisfied that the applicant will continue to engage only in activities specifically consistent with his or her nonimmigrant status. [See Matter of Sourbis , 11 I&N Dec. 335 (BIA 1965); Matter of Sparmann , 11 I&N Dec. 285 (Acting District Director, 1965); Matter of Rogalski , 14 I&N Dec. 507 (District Director, 1973); Matter of Healy and Goodchild , 17 I&N Dec. 22 (BIA, 1979)]. In determining whether a favorable exercise of discretion is warranted consider, among other things:
• the applicant’s age and condition (and how that relates to the specific reasons given for the requested extension). For example, a healthy, working or school age B-2 extension applicant staying in the home of a family with small children for a prolonged period could give rise to the suspicion that the applicant is actually providing child care or attending school.
• whether the applicant is likely to attempt to stay indefinitely. USCIS may terminate a nonimmigrant’s authorized period of stay when it becomes aware the alien intends to remain indefinitely in the U.S. [See Matter of Safadi, 11 I&N Dec 446 (BIA 1965) ].
(D) Determine Whether Alien Is a Visas Mantis Case . If so, follow the Visas Mantis reporting procedures discussed in Chapter 30.2(e) .
| Note: The usual time allowed for an extension for a B-1 visitor is the length of time requested, or no more than six (6) months at one time, whichever is less. However, B-1 members of a religious denomination doing temporary missionary work may be granted extensions up to one year in length. |
(4) Interview . Requiring a personal appearance by an applicant or requesting a formal investigation for an extension should rarely be required. Likewise, requests for additional evidence should be relatively unusual. The application itself, supporting documentation required by the instructions on the form and existing INS or USCIS records will enable you to adjudicate virtually any extension of stay request.
(5) Revocation of Extensions . USCIS has the authority to reopen and deny an extension which was granted without knowledge of the true facts material to the case [See Matter of T – -, 9 I&N Dec. 239 (BIA 1961).] Such actions require a “Motion to Reopen” written in letter format, followed by the actual decision written in formal order. Note: Even in those few cases where on fee is collected on a motion to reopen (I.e., when USCIS is the moving party), it is still counted as an application or petition (as appropriate) received and completed.
(6) Bonds . A maintenance of status and departure bond, although seldom used, may be required as a condition for approval of an extension or change of status request. [See Inspector’s Field Manual , Chapter 45, for procedures on posting bonds.]
(7) File Review . In adjudicating an Form I-539 , a relating “A” file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien’s behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating “A” file can be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant’s Form I-94 is noted “ARL” the file should not be requested, but the Arlington, VA. District Office should be con sulted before an extension of stay is granted. In all cases in which an “A” file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.
(8) (Chapter 30.2(c)(8)(A), revised 07-27-2005) .
(A) Approval . Determine the appropriate amount of time for the extension. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.] Endorse the action block on the application and indicate the actions taken in the “INS (or as updated forms are issued, USCIS) use only” section of the form. Upon approval, update CLAIMS, ordering approval notices. The Form I-530 forwarding the record of approval is automated at the service centers and the data is sent to TECS. Returning the receipt file to Records. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94 , indicating the extension date. If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the approval date, office three-letter code, and officer stamp number. In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding of Form I-530 or the automated equivalent for each alien included on the application and (unless the I-94 is hand-delivered to the alien) completion of an approval notice on Form I-542.
(B) Denial . Endorse the action block on the application and indicate the actions taken. Set a voluntary departure period, if the alien is no longer maintaining status. For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text if necessary. In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial; and prepare Forms I-530 for the applicant and each dependent and forward to NIIS. Delivery of the decision may be accomplished by routine ser vice, as described in 8 CFR 103.5a.
(C) Routing of Miscellaneous Documents . In the case of a J-1 application for an extension of stay, always return the pink colored, USCIS annotated, IAP-66 with the I-94 to the applicant or attorney. The yellow copy of the IAP-66 is sent to the Department of State, Bureau of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy of Form I-20AB is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorne y, in accordance with Appendix 15-8 of the Inspector’s Field Manual .
(9) Appeal . There is no appeal from an adverse decision on Form I-539 . Decisions may be certified to the Administrative Appeals Unit in accordance with 8 CFR 103.4. An alien may seek review of an improper decision by filing a motion pursuant to 8 CFR 103.5.
(d) Use of Form I-129 for Extension of Stay .
(1) Initial Receipting . General receipting procedures are discussed in Chapter 10 of this manual. The applicant’s employer must file Form I-129 with the service center having jurisdiction over his or her (the alien’s) place of employment. A single application may be filed by the employer on behalf of a family group, provided all family members hold the same status or derivative status. Family members may not be included in a petition for multiple principal beneficiaries. Although technically a readmission, NAFTA extensions for TN and L-1 nonimmigrants may also be adjudicated at ports-of-entry when the applicant seeks reentry. [See Inspector’s Field Manual , Chapter 15.5.] Editions of Form I-129 prior to the most current edition may not be accepted for purposes of extension of stay for nonimmigrants.
(2) Preliminary Review . In addition to the steps discussed in Chapter 10 of this field manual :
(A) Ensure the form is completed as required and the correct supplement is filled out for the applicable nonimmigrant category.
(B) Review supporting documents. If there has been no change in employment, only the appropriate I-129 supplement and a letter from the employer confirming continuing employment is required, except that the employer must also submit :
• a copy of the employer’s labor condition application and Form I-129W for H-1B applicants.
• a valid labor certification for H-2B applicants.
• a valid labor certification for H-2A applicants, unless it is a request for an extension not to exceed two weeks (or less, if the original certification was for less than two weeks) for employment included in a prior certification.
Other special supporting documents required for nonimmigrant extensions where there is a change in the terms and conditions of employment are discussed in the Chapters 31-35, relating to specific categories.
| Note 1: Form I-94 . If an original I-94 is attached, rather than a copy, it should be returned when action is completed on the application, since CLAIMS generates a new I-94, to be attached to the original, upon approval of the extension. Questions regarding original admission or previous status can usually be resolved by searching CLAIMS or NIIS data bases. NIIS records should contain arrival information, in the event an I-94 is not submitted. |
| Note 2: Jurisdiction . Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction. Remember that jurisdiction is determined by the petitioner’s address in cases involving temporary employment: |
| • for the same employer at more than one location; |
| • for more than one agricultural employer, where an association is petitioning for H-2A workers; or |
| • for one, or more than one, non-agricultural employer, where an established agent is serving as the petitioner. |
| Note 3: Dependents . Dependents may be included on an I-129 extension request if the I-129 includes only one principal alien. In the event a multiple beneficiary I-129 is submitted which includes dependents for one or more principals, request that the dependents submit separate extension applications on Form I-539 . A separate I-539 is required for each family group of dependents. |
(3) Adjudication . Nonimmigrant extensions on Form I-129 are ordinarily fairly simple to adjudicate, unless there is a change in previously authorized employment. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant.
Extensions of stay filed on Form I-129 must be divided into two categories. Extensions involving aliens in E, R or TN status are single-step requests, although it is necessary to consider eligibility both in terms of requirements relating to the employer and those relating only to the alien. There is no separate adjudication of a petition extension, technically filed by an employer on the alien’s behalf.
Extensions involving H, L, O, P or Q aliens are, in reality, a two-step adjudication: consideration of the employer’s request to extend the petition to classify the alien as a nonimmigrant worker and consideration of the alien’s request for additional time as a nonimmigrant. This distinction is an important one, since a denial of the employer’s petition extension may be appealed to the Administrative Appeals Office while a denial of the extension of stay may not be appealed. The issues relating to the petit ion extension are the same as those for an initial petition. These requirements are discussed separately in Chapters 31-33 and 35. The issues surrounding an alien worker’s request to extend his or her nonimmigrant stay in the U.S. are generally the same as for any other nonimmigrant category.
| Note: The alien beneficiary of a Form I-129 being filed by his or her employer for an extension has previously been found eligible for nonimmigrant status, either by INS, USCIS or CBP at the time of admission or through an initial petition, or by the Department of State during the visa issuance process. Absent apparent gross error, a change in the circumstances surrounding the alien’s stay, or discovery of new information not previously available, the adjudicator should not engage in an in-depth review of issues relating to the initial status. In the event of adverse action on a reopened I-129 petition (or denial of a petition extension request), the petitioner has the same appeal right s available in the original petition proceedings (see chapter 10.17 of this Field Manual for additional discussion of motions to reopen and motions to reconsider). |
In addition to the general procedures described in Chapter 10.3, the following actions are ordinarily required during the adjudicative process:
(A) For H, L, O, P or Q-1 aliens, determine if the petitioning employer’s eligibility has changed in any way. It is generally not necessary to request new supporting documents (except any required labor certification or labor condition application), nor should the original file be routinely requested. If eligibility has changed or the original petition was improperly approved, follow the procedures in Chapters 31-35 for denial or for reopening based on a USCIS motion (see chapter 10.7(c) of this Field Manual) . If the petition was properly approved and the employer’s eligibility remains unchanged, consider the alien’s eligibility for an extension, as outlined below.
(B) For E, Q-2, R and TN cases, consider the original eligibility requirements for the status, as discussed in Chapters 34 and 35 . If eligibility has changed or the alien was not originally entitled to the status, deny the extension request, following the procedures below. If employment-related eligibility requirements continue to be met, consider other aspects of the extension request, as outlined below.
(C) Determine if the Form I-129 was timely filed . Although timely filing is ordinarily required, the adjudicator has discretion to grant an extension based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the alien’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings by the Service.
(D) Verify passport validity . An alien need not submit a valid passport with his or her application, since Part 4 of the application contains a check-block requiring the applicant to indicate he or she has a valid travel document. The alien must hold a valid passport at the time of filing and must agree to maintain its validity during the entire period of his or her stay.
(E) Ensure that co-applicant dependents remain entitled to dependent status.
(F) Review the validity of any required labor certification or labor condition application. No extension may be granted beyond their validity.
(G) Determine whether alien is subject to the Visas Mantis reporting procedures discussed in Chapter 30.2(e) .
(4) Interview . Requiring a personal appearance by an alien for an extension should rarely be required and requests for additional evidence should likewise be relatively unusual. The Form I-129 itself, supporting documentation required by the instructions on the form and existing USCIS records will enable you to adjudicate most extension of stay requests. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. The application itself, supporting documentation required by the instructions on the form and existing USCIS records will enable you to adjudicate virtually any extension of stay request. When an interview is conducted, a sworn statement (or a memorandum containing the results or notes summarizing the interview) should be included in the record. If the interview was conducted at the request of a service center or another field office, that office should be notified of the findings.
(5) Temporary vs. Permanent Intent: Effect on Nonimmigrant Status . Although nonimmigrants, by definition, are in temporary status and should be able to demonstrate their intention to return to their home country, H-1 and L nonimmigrants need not maintain a residence in a foreign country and are considered to be maintaining status even after taking overt actions to remain permanently in the United States. Other classes of nonimmigrants may be required to provide evidence of their intent to depart from the United States when their authorization to remain expires.
(6) File Review . In adjudicating an extension on Form I-129 , a relating “A” file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien’s behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating “A” file can be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the alien’s Form I-94 is noted “ARL” the file should not be requested, but the Arlington, VA. District Office should be consulte d before an extension of stay is granted. In all cases in which an “A” file exists, the adjudicated Form I-129 and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.
(7) Closing Actions . In addition to the general procedures described in Chapter 10, the following closing actions are required:
(A) Approval . Determine the appropriate amount of time for the extension. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.] Endorse the action block on the Form I-129 and indicate the actions taken in the “INS use only” section of the form. Upon approval in CLAIMS, update the system, ordering approval notices and forwarding the record of approval to NIIS. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94, indicating the extension date. If the case is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the approval date, office three-letter code, and officer stamp number. In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the application and completion of an approval notice on Form I-171C.
| Note: Approval of a timely-filed I-129 extension is always considered nunc pro tunc , effectively forgiving the status violation for overstaying or continuing employment (with the same employer) which may have occurred between the expiration of the original admission period and the approval date of the extension. [See Matter of Dacanay 16 I&N Dec. 238 (BIA 1977).] |
(B) Denial . Endorse the action block on the Form I-129 and indicate the actions taken, including setting a voluntary departure period, if the alien is no longer maintaining status. For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text if necessary. In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial, set a period of voluntary departure; and in both CLAIMS and non-CLAIMS denials, prepare Forms I-530 for each alien included on the application and forward to NIIS. Delivery of the decision should be by routine service, as described in 8 CFR 103.5a.
(8) Appeal . There is no appeal from an adverse decision on Form I-129 filed for purposes of seeking an extension of stay, except in H, L, O, P and Q cases where the denial is based on petition-related issues. If the adjudicator reopens an original petition and denies a case on petition-related grounds, the matter may be appealed to the Administrative Appeals Unit.
___________________________________________________ Change of Nonimmigrant Status Under Section 248.
___________________________________________________ Change of Nonimmigrant Status Under Section 248.
(a) General . Section 248 of the Act provides a nonimmigrant, lawfully admitted to the U.S., who is continuing to maintain the status in which he or she was admitted or previously changed, the opportunity to change from one classification under section 101(a)(15) of the Act to another, with certain restrictions. Its purpose is to allow such nonimmigrant, in meritorious situations, to avoid the delay and expense of departing from the U.S. and returning, in order to engage in activities other than those permitted in his or her original or current nonimmigrant visa category. The applicant must meet all eligibility criteria for the new category. An application for a change of status is filed on Form I-129 , Petition for a Nonimmigrant Worker or Form I-539 , Application to Extend/Change Nonimmigrant Status, as specified in 8 CFR 248.3, depending upon the nonimmigrant classification being sought. The I-539 is used for changes to A, B, F, G, I, J, M, N, S and NATO and for dependents of other classes when the principal has already been accorded another status. The I-129 is used for nonimmigrants seeking E, H, L, O, P, Q, R and TN status concurrently with approval of a petition to accord such status. Special requirements for each status are discussed in Chapters 31-35. No request or application is required to change status from B-1 to B-2. Other within-class changes, such as F-2 to F-1 or H-4 to H-1, require a formal application and fee even though they are not, strictly speaking, changes of status under section 248 of the Act.
(1) Changes from a Specified Class (Chapter 30.3(b)(1), Revised 07-13-2005) . An alien in classes C, D, K, S, WT, WB, or TWOV is ineligible for a change of nonimmigrant status. An alien admitted as an exchange visitor (J) who is subject to the two-year foreign residence requirement of section 212(e) of the Act and who has not received a waiver of that requirement, can change only to A or G status. See Matter of Kim , 13 I&N Dec. 316 (R.C. 1968). Any J nonimmigrant who was admitted (or acquired such status) to pursue graduate medical education or training is ineligible to change status, even if he or she obtains a waiver of section 212(e) . An alien who has been admitted as an Irish Peace Process Cultural and Training Program visitor (Q-2 alien) is subject to the two-year foreign residence requirement of section 212(t) of the Act. Such an alien cannot apply for another nonimmigrant status, an immigrant visa, or permanent residence until the residency requirement has been met or a waiver has been granted. However, 212(t) only applies to those Q-2 aliens who initially entered the United States on or after December 10, 2004.
(2) Changes to a Specified Class . Although an application and fee are required, changing from J-1 to J-2 is not regarded as a change of status, therefore, it is not prohibited. An M-1 nonimmigrant cannot change to F-1 status or to H status if the M-1 training helped him or her qualify for H status. No nonimmigrant can be granted M-1 status in order to gain training necessary to qualify for H status. [See also 8 CFR 248.2 and §248 of the INA.]
(1) Initial Receipting . The applicant must file Form I-539 with the service center having jurisdiction over his or her place of residence. A single application may be filed by a family group. The basic procedures for receiving such applications are discussed in Chapter 10.
| Note: On April 12, 2002, the INS amended 8 CFR 248.1(c) to add a provision prohibiting most B-1 or B-2 nonimmigrants from changing status to that of F or M full-time student if that B-1 or B-2 nonimmigrant has already begun taking classes at the school. USCIS must deny the requested change if there is evidence that the alien has begun course work prior to the adjudication (approval) of the I-539 application. The rule applies to any B-1 or B-2 nonimmigrant who: • Last entered the United States as a B-1 or B-2 nonimmigrant on or after April 12, 2002; or • Although admitted to the United States as a B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an application for an extension of his or her nonimmigrant status on or after April 12, 2002; or • Although admitted in any nonimmigrant category either before, on, or after April 12, 2002, filed an application for a change of nonimmigrant status to that of B-1 or B-2 on or after April 12, 2002; or • Although granted a change of status to that of B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an application for an extension of his or her B-1 or B-2 nonimmigrant status on or after April 12, 2002. An applicant who does not meet ANY of these four provisions is “grandfathered in” under the old (pre-April 12, 2002) regulations and is NOT subject to the bar. |
(2) Preliminary Screening . In addition to the steps described in Chapter 10 , preliminary review includes the following:
(A) Determine Jurisdiction . Jurisdiction is generally based on the alien’s location in the United States. Consult with supervisory personnel before accepting an application which does not appear to be submitted in the proper jurisdiction.
| Note: Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction. |
However, the Washington District Office and the New York District Office have jurisdiction over certain adjudications concerning A, G, NATO nonimmigrants.
· Changes into or within an A, G, or NATO Classification . Requests for change of status into or within an A, G, or NATO nonimmigrant classification are adjudicated exclusively by USCIS personnel from the Washington District Office, who meet weekly with personnel in the Department of State (DOS) Visa Office in Washington, DC, or by New York District Office personnel who work closely with the U.S. Mission to the United Nations (USUN) in New York. This was a long-standing arrangement between DOS and the former Immigration and Naturalization Service, which continues with USCIS. These two USCIS offices have assigned adjudicators to this function. Change of status requests into or within any of these classifications should not be adjudicated at any other district office or at a service center.
When an alien in the United States requests a change of nonimmigrant status into or within an A, G, or NATO classification, that request must first be considered by the DOS Office of Protocol, USUN for aliens assigned to the United Nations or to a foreign mission to the United Nations, or by the North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation (NATO/HQ SACT) for aliens assigned to a NATO command. A change within a classification would include instances in which aliens receive promotions or otherwise change their responsibilities and may require a change within the existing classification, for example, from A-2 to A-1.
How to Handle Requests for Change of Status into or within an A, G, or NATO Classification Filed at Other District Offices or Service Centers . Should another district office or service center receive a request for a change of status into or within an A, G, or NATO classification, the request should be returned to the alien, using the following recommended language:
“Your application was filed incorrectly. Please resubmit your application along with any required supporting documents to your embassy, international organization or permanent mission thereto, or NATO command. Your employing organization must first review this application and then forward it on to one of these certifying organizations: Department of State, U.S. Mission to the United Nations, or North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation. Following certification by one of these organizations, your application will then be submitted to the USCIS by one of them. You do not submit this type of application directly to USCIS.”
· Extension of Stay for A-3, G-5, or NATO-7 Classifications . Requests for an extension of stay for an A-3, G-5, or NATO-7 nonimmigrant are adjudicated exclusively by the Washington District Office or New York District Office, following a thorough review of the circumstances of such requests by DOS, USUN, or NATO officials. These officials are able to verify that the sponsoring employer continues to hold the qualifying position and to review updated employment contracts to ensure that the terms of employment are consistent with current requirements. Such requests f or an extension should not be adjudicated at other district offices or service centers.
How to Handle Extension of Stay Requests for A-3, G-5, or NATO-7 Nonimmigrants Filed at Other District Offices or Service Centers . Should another district office or service center receive any such request, the request should be returned to the alien, using the following recommended language:
“Your application was filed incorrectly. Please contact your employer’s embassy, international organization, or NATO command for proper filing procedures.”
· Change from an A, G, or NATO Classification . When A, G, or NATO aliens wish to change to another nonimmigrant classification, such requests are adjudicated at service centers, provided there is an endorsement by a DOS Visa Office or a USUN official at Part 7 on Form I-566 (Interagency Record of Request), accompanying Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker). Please note that the DOS Visa Office, not NATO/HQ SACT, endorses this form on behalf of NATO nonimmigrants.
Should questions arise during the adjudication, USCIS personnel may wish to consult with one of the following:
Diplomatic Liaison Division of the DOS Visa Office at telephone (202) 663-1743 or fax (202) 663-1608 — for aliens in A classification and for aliens in G classification except those who are assigned to the United Nations, for example a G nonimmigrant working at the World Bank in Washington, DC;
Advisor for Host Country Affairs at USUN at (212) 415-4167 or fax (212) 415-4162 — for aliens in G classification and assigned to the United Nations Secretariat or an individual mission to the United Nations;
Legal Affairs Office at NATO/HQ SACT at (757) 747-3640 or fax (757) 747-3310 — for aliens in NATO classification.
· After the adjudication of a change of status from these classifications : USCIS officers must complete Part 8 of the revised Form I-566 by documenting action taken and returning a copy of that form to the appropriate office:
For the Department of State, Office of Protocol, use the following address:
Office of Foreign Missions
3507 International Place, NW
Washington, DC 20522-3302
For the U. S. Mission to the United Nations, use the following address:
U.S. Mission to the United Nations
799 United Nations Plaza
New York, NY 10017
For the North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation, use the following address:
NATO/HQ SACT
Legal Affairs Office
7857 Blandy Road, Suite 100
Norfolk, VA 23551
DOS, USUN, and NATO/HQ SACT update their records based upon information USCIS personnel provide on this form. Thus, it is important that a complete copy of the Form I-566 be forwarded promptly to the appropriate agency or organization, noting what action was taken and the date it was taken, as well as the name and telephone number of the adjudicating office for use in the event that should DOS, USUN, or NATO/HQ SACT have questions regarding the adjudication.
(B) Ensure Form I-94, either original or a copy, is submitted. If there are multiple applicants on a single application, insure a copy of each I-94 is attached.
| Note 1: Form instructions on Form I-539 indicate that aliens seeking B, F, J or M status are required to submit their original Form I-94. Others should submit only a copy of their I-94. If I-94 copies are submitted even though originals were required, or vice versa, and the application will be adjudicated in CLAIMS, continue processing unless there is some apparent need to examine an original form. The CLAIMS-generated approval notice, Form I-797A , includes a replacement I-94, which is to be attached to the original I-94. Return to the applicant any original I-94 which was improperly submitted. |
| Note 2: If a change of status applicant claims to have lost his or her I-94, a separate Form I-102, Application for Replacement/Initial Arrival/Departure Record should be filed since the I-94 issued in the course of adjudicating the application indicates that it is to be attached to the original I-94. Verify arrival from NIIS or, if no record can be found, obtain a copy of the applicant’s passport page containing the admission stamp. |
| Note 3: Inadmissibility Issues . At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and b een granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension. |
(C) Ensure the applicant has attached supporting documentation for the classification sought:
• Aliens seeking F-1 or M-1 status must submit the appropriate Form I-20 and evidence of financial ability to maintain the new status. Aliens seeking J-1 status must submit Form IAP-66.
• Aliens seeking A-3 or G-5 status must submit an executed Form I-566, a letter from their employer detailing their job duties and evidence of the employer’s status (usually an I-94).
• Dependents of various temporary workers must submit evidence of the principal alien’s status (or evidence of a pending request for such status).
| Note: Information relating to a principal alien’s status, if missing or questionable, may be verified in CLAIMS or NIIS. There is no dependent status for Q-1 or TN nonimmigrants; however, such dependents may separately qualify for nonimmigrant status, usually B-2. |
Detailed discussions of supporting documents for each status are contained in Chapters 34 through 37.
(3) Adjudication . Applications for a change of status on Form I-539 are relatively simple to adjudicate. Because the benefit sought is generally short-lived or time-sensitive, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant. The following actions, in addition to the steps described in Chapter 10.3, are ordinarily required during the adjudicative process:
(A) Determine if the application was timely filed . Although ordinarily required, the adjudicator has discretion to grant a change of status based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings. If the alien is guilty of more than excusable tardiness (e.g., if he/she has worked without authorization or has committed a crime), the adjudicator has no discretion to excuse the tardiness.
(B) Verify passport validity. An applicant need not submit a valid passport with his or her application, but must complete Part 4 of the application which contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the U.S.
(C) Determine if any and all required supporting forms, such as Form I-20, DS-2019, or I-566 are attached, properly completed, and endorsed. [See also Chapters 34-37 discussions of supporting documentation.]
(D) Determine if a Favorable Exercise of Discretion Is Warranted . Change of status applications are discretionary in nature. In deciding whether a favorable exercise of discretion is warranted, consider such things as the alien’s financial ability to maintain the status sought, whether there was possible deception when the original visa or admission was sought, what the applicant’s ultimate intentions may be, veracity of documentation submitted, and the overall effects of a positive or negative decision. It is important to keep in mind that discretionary does not mean a rbitrary. Given similar fact patterns, discretionary decisions should yield similar results regardless of where such cases are adjudicated or by whom. There is a significant body of precedent decisions which discuss the appropriate exercise of discretion under a variety of situations. Familiarity and conformity with these precedents are critical to achieving consistent and fair results in such cases.
| Note 1: Ability to Maintain Status . Maintenance of status is discussed generally in Chapter 30.1. In order to change status, an applicant must be a bona fide nonimmigrant, maintaining his or her current status [ Matter of Haddad , 10 I&N Dec 785 (R.C. 1964)]. Matter of Lee , 11 I&N Dec. 601 (R.C. 1966) found that an H-1 nonimmigrant’s failure to continue the temporary employment for which he was admitted constituted a failure to maintain status. |
| With the exception of H-1 or L nonimmigrants who are covered by section 212(h) of the Act, because an alien who is seeking a change of status and/or an extension of stay bears the burden of establishing eligibility for the benefit sought, if he or she has filed an application for adjustment of status or an application for asylum (or even if he or she is the beneficiary of a permanent or temporary visa petition, unless the applicant can establish that he or she is the unwilling or unknowing beneficiary) he o r she cannot meet this burden and the application for change of status or extension of stay should be denied. Contrast this issue with the discussion in Chapter 23 on whether an alien automatically violates his or her nonimmigrant status by merely applying for adjustment of status or asylum. However, under certain very limited circumstances, extension or change of status may be granted to an alien who (1) had previously been denied adjustment or asylum or whose previously approved visa petition has been wit hdrawn or revoked, (2) who met the criteria discussed in Chapter 23 for being considered as having maintained his or her status throughout the pendency of the asylum/adjustment application, and (3) is able to satisfy the officer adjudicating the application for change or extension that he or she has completely abandoned his or her intend to remain in the United States beyond the period which can be authorized under the change or extension being sought. |
| In addition, the applicant must demonstrate he or she is able to maintain him or herself in the status sought, particularly financially. This issue needs particular examination when the applicant seeks a prolonged stay in any status where employment is not a routine part of the status, for example student status. The discussion of status and the effects of section 212(a)(9) of the Act are discussed in paragraph 30.1 of this chapter. |
| Note 2: Preconceived Intent . The adjudicator will encounter applications where it appears, either from the statements made on the application or from the sequence of events (from initial visa application and issuance, admission, obtaining supporting documents for a new status, until the date of filing) that the applicant concealed his or her true purpose for entering the U.S., either on the visa application or to the inspector at the time of admission. Most frequently, this situation occurs in requests to change status from B-2 to F- 1. The issuance dates of Forms I-20, affidavits of support , etc. are often helpful in determining whether preconceived intent or actual fraud exists. |
| USCIS policy discourages such deliberate actions. In cases where the new status is one which requires substantial financial assets by the applicant or an overseas sponsor, the consular officer in the applicant’s home country is in a better position to assess the situation than a USCIS adjudicator. Similarly, where an applicant’s overseas employment or ties to his or her home country are at issue, again the consular officer on the scene can most easily assess eligibility. |
| Although the facts in such situations could be indicative of actual visa fraud, more often the appropriate course of action may be to deny the application as a matter of discretion. A denial would not be warranted simply because an applicant entered as a visitor, for example, and was later offered an opportunity to attend school, receive specialized training or accept employment. It is necessary to look closely at the facts of the particular case, examining such facts as dates on supporting documents. If ne cessary, seek additional information from the applicant concerning all facts leading to his or her request. |
| A series of precedent decisions and court cases upholds the Service’s decision to deny a change of status in such a situation. Matter of Hsu , 14 I&N Dec. 344 (R.C. 1973), denied a change of status to an applicant who obtained a visa under the pretext of a visit for business whereas the actual purpose was to seek acceptance at a school. In Matter of Le Floch , 13 I&N Dec. 251 (BIA 1969), the Board ruled that even the applicant’s claim that she was misinformed by a consular officer regarding the need for a student visa was insufficient to justify entry as a visitor. In Seihoon v. Levy , 408 F. Supp. 1208 (La. 1976), the court upheld the decision to deny an application to change status based on a finding that a rapid sequence of events leading to enrollment in a school is sufficient for a finding that the applicant had a preconceived intent to change nonimmigrant status and circumvent the normal visa issuance process. |
| Note 3: Applicant Is an Intending Immigrant . Matter of Gutierrez , 15 I&N Dec. 727 (R.C. 1976), denied a change of status to an alien who was determined to be an intending immigrant. However, it should be noted that not all nonimmigrants are required to maintain a foreign residence and that in some categories even overt evidence of intent to remain permanently in the United States is not a ground for denial of a change of status request. However, in the most commonly filed requests, those seeking F, J or M classification, before approving a case the adjudicator should be satisfied that the alien is not an intending immigrant. |
| Note 4: Visas Mantis Cases . In adjudicating an application for change of status on behalf of an alien who was admitted under the Visas Mantis program, follow the same procedures as are set out for extension of stay applicants in Chapter 30.2(e) . |
| Note 5: Inadmissibility Issues . At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and b een granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension. |
(4) Personal Interview . Requiring a personal appearance by an applicant for a change of status should rarely be required and requests for additional evidence should likewise be relatively unusual. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. (If the case is being referred for an interview, prepare a memorandum explaining the reasons for the referral.) The application itself, supporting documentation required by the in structions on the form, and existing records will enable you to adjudicate virtually any extension of stay request. When an interview is conducted, a memorandum containing the results or notes summarizing the interview should be included in the record. If the interview was conducted at the request of a service center or another field office, that office should be notified of the findings.
(5) Indirect Attainment of a Prohibited Change of Status . Chapter 30.3(b) describes limitations on certain nonimmigrant status changes. An applicant may not evade these restrictions by virtue of having attained an intermediate status. Matter of Kim , 13 I&N Dec. 316 (R.C. 1968), denied a change of status from A-2 to F-1 because the applicant was originally admitted as a J-1. Such a change would be an indirect change from exchange visitor to student, a prohibited action.
(6) Changes of Nonimmigrant Classification Formerly Permitted Without Application or Fee . Prior to January 11, 1994, 8 CFR 248.3(c) specifically allowed certain changes without fee or application. Those changes included:
(A) A change to classification under section 101(a)(15)(A) or (G) of the Act;
(B) A change to classification under sections 101(a)(15)(A) or (G) of the Act for an immediate family member, as defined in 22 CFR 41.1, of a principal alien whose status has been changed to such a classification;
(C) A change to the appropriate classification for the nonimmigrant spouse or child of an alien whose status has been changed to a classification under sections 101(a)(15)(E), (F), (H), (I), (J), (L), or (M) of the Act;
(D) A change of classification from that of a visitor for pleasure under section 101(a)(15)(B) of the Act to that of a visitor for business under the same section;
(E) A change of classification from that of a student under section 101(a)(15)(F)(I) of the Act to that of an accompanying spouse or minor child under section 101(a)(15)(F)(ii) of the Act or vice versa;
(F) A change from any classification within section 101(a)(15)(H) of the Act to any other classification within section 101(a)(15)(H) of the Act provided that the requisite visa petition has been filed and approved;
(G) A change of classification from that of a participant under section 101(a)(15)(J) of the Act to classification as an accompanying spouse or minor child under that section or vice versa;
(H) A change of classification as an intra-company transferee under section 101(a)(15)(L) of the Act to classification as an accompanying spouse or minor child under that section or vice versa; and
(I) A change of classification from that of a student under section 101(a)(15)(M)(I) of the Act to that of an accompanying spouse or minor child under section 101(a)(15)(M)(ii) of the Act or vice versa.
The reason for discontinuing these provisions related to the need to eliminate circumstances whereby persons could change status without paying a fee (in effect transferring the USCIS’ cost of doing business onto someone else), not with proscribing any of these actions. The types of changes for status listed above remain equally available to persons in such classifications today, provided that the person(s) involved file the application, pay the requisite fee, and are otherwise eligible. After Jan. 11, 1994, only those aliens described in (A) remain exempt fee.
Note: It has been determined that 8 CFR 248.3(b) applies to the B-2 spouse or children of B-1 nonimmigrants. Therefore, if a B-1 nonimmigrant applies for and is granted an extension of temporary stay, the status of the spouse and children will be changed without fee or application. Upon this change of status, Forms I-94 must be endorsed “B-1 spouse” or “B-1 child”.
(7) Change of Status within the J Classification . 8 CFR 248.2 prohibits a change from the J nonimmigrant classification for any individual who became a J in order to receive graduate medical training or who is subject to the 2-year residency requirement. However, this prohibition does not prevent someone (who is otherwise eligible) from seeking a change within the J category from J-1 to J-2, or vice versa. However, three important items should be noted regarding this type of change:
(A) Any alien(s) subject to the 2-year residency requirement retains that obligation despite the change from J-1 to J-2 or vice versa;
(B) The alien(s) involved may acquire a 2-year residency requirement which they did not have previously [e.g., a J-1 not subject to the requirement who becomes a J-2 accompanying spouse of someone who is subject acquires the same obligation as the (new) J-1 principal]; and
(C) Before approving any such change, the adjudicator should be satisfied that it is being requested for legitimate exchange visitor purposes and not merely to extend the stay in the United States by “flip-flopping” the roles of the principal alien and the accompanying spouse.
(8) Bonds . A maintenance of status and departure bond, although seldom used, may be required as a condition for approval of an extension or change of status request. See Inspector’s Field Manual , Chapter 45, for procedures on posting bonds.
(9) Affidavits of Support . See Chapter 30.8 of this manual.
(10) File Review . When adjudicating an application for change of status, obtain and review any relating “A” file prior to adjudication if a bond has been posted on the alien’s behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating “A” file may be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant’s Form I-94 is noted “WAS” the file should not be requested, but the Washington, D.C. District Office should be consulted before an extension of stay is granted. In all cases in which an “A” file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.
(11) Case Closing Actions .
(A) Approval . Complete the following steps when approving an application for change of status:
• Determine the appropriate amount of time for the extension of stay in the new visa classification. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.]
• Endorse the action block on the application and indicate the actions taken in the section of the form designated “for Government Use Only”.
• For CLAIMS-processed cases, upon approval, update CLAIMS and order approval notices. The system will forward the record of approval to NIIS. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94 indicating the new status and extension date.
• If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the action taken (e.g. “c/s to F-1″), approval date, office three-letter code, and officer stamp number. Also, endorse the I-94 manually or using a rubber stamp, with the notation: “You must obtain a new visa to reenter this country in your present status.” In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the app lication and completion of an approval notice on Form I-542.
(B) Denial . If denying the application for change of nonimmigrant status, complete the following steps:
• Endorse the action block on the application and indicate the actions taken in the section of the form designated “for Government Use Only”.
• Using Form I-210, set a period of voluntary departure if the applicant is no longer maintaining status and he or she has agreed to accept voluntary departure.
• For denials processed in CLAIMS, select the proper standard denial paragraphs from CLAIMS, adding special text if necessary.
• In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial.
• In both CLAIMS and non-CLAIMS cases, prepare Form(s) I-530 and forward to NIIS — Service Centers do not prepare I-530s on denials of I-129s ir I-539s.
(C) Routing of Miscellaneous Documents . Returning the pink colored, USCIS annotated, IAP-66 with the I-94 is no longer the process. IAP-66 has been replaced by SEVIS generated DS-2019s. This is no longer a multiple copy form. Annotated original DS-2019 is returned to the applicant or attorney after approval of the COS. A photo copy of the annotated DS-2019 should go into the file. In the cas of the F-1 form I-20, the original endorsed I-20 is returned to the student or attorney, a photocopy of the annotated I-20 goes into the case file and nothing is sent to London, KY. SEVIS has eliminated STSC which is where the data from the copies of the I-20s were entered previous to SEVIS.
The yellow copy of the IAP-66 is sent to the Department of State, Bureau of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy (Form I-20AB) is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorney, in accordance with Appendix 15-8 of the Inspector’s Field Manual .
The yellow copy of the IAP-66 is sent to the Department of State, Bureau of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy (Form I-20AB) is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorney, in accordance with Appendix 15-8 of the Inspector’s Field Manual .
(12) Appeal . There is no appeal from an adverse decision on Form I-539 filed for purposes of seeking a change of status.
