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Changing From One Nonimmigrant Status to Another

From Jennifer Leavitt-Wipf,
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How to go About Iit

How Do I Get Permission to Change to a New, Non-immigrant Status?

First things first...

Why Do You Need to Ask to Change to a New Nonimmigrant Category?
A non-immigrant temporarily enters the United States for a specific purpose such as business, study, temporary employment or pleasure. When you are admitted into the United States, a U.S. official will assign you a non-immigrant category according to the purpose of your visit. If you want to change the purpose of your visit while you are in the United States, then you or, in some cases, your employer must ask the Immigration and Naturalization Service to change your non-immigrant status. For instance, if you arrived here as a tourist, but want to become a student, you must submit an application to change your status with the USCIS.

If you do not apply to change your non-immigrant status, you will be breaking U.S. immigration laws. Proof that you are willing to obey U.S. laws may be important if you want to travel to the United States as an immigrant or non-immigrant in the future. You may also become subject to removal (deportation) if you break U.S. immigration laws.

Where Can I Find the Law?
The Immigration and Nationality Act (INA) governs the admission of all people to the United States. For the part of the law concerning changing non-immigrant status, please see INA No. 167; 248. The applicable regulations are found in the Code of Federal Regulations (CFR) at 8 CFR No. 167; 248.

Who is Eligible?
To find out who may apply to change non-immigrant status, see eligibility information.

How Do I Apply?
For the following categories of non-immigrants, your employer should carefully read and file an INS Form I-129 (Petition for Non-immigrant Worker) and any required supporting documentation:

E - International Traders and Investors
H - Temporary Workers
L - Intracompany Transferees
O - Aliens of Extraordinary Ability
P - Entertainers and Athletes
Q - Participants in International Exchange Programs
R - Religious Workers
TN - Canadians and Mexicans Under NAFTA

If you are in the following non-immigrant categories, you should complete USCIS Form I-539 (Application to Extend/Change Non-immigrant Status) carefully read and complete and submit any required supporting documents:

A - Diplomatic and other government officials, and their families and employees.
B - Temporary visitors for business or pleasure.
F - Academic Students and their families.
G - Representatives to international organizations and their families and employees.
I - Representatives of foreign media and their families.
J - Exchange Visitors and their families.
M - Vocational Students and their families.
N - Parents and children of the people who have been granted special immigrant status because their parents were employed by an international organization in the United States.

The application and correct fee should be mailed to the USCIS Service Center that serves the area where you are temporarily staying. If your non-immigrant category is work-related, then the application and correct fee should be mailed to the Service Center that serves the area where you will work. Forms are available by calling 1-800-870-3676.

How Do My Spouse and Child Apply to Change Their Nonimmigrant Status?
If your employer files USCIS Form I-129 (Petition for Alien Worker) for you, then your spouse and child must carefully read and complete USCIS Form I-539 (Application to Extend/Change Non-immigrant Status) and submit any required supporting documents to change to a new non-immigrant category. It is best to submit both forms at the same time.

You may include your spouse and any unmarried children under the age of 21 in your USCIS Form I-539 application if you are all in the same non-immigrant category, or if your spouse or children were given derivative non-immigrant status. Derivative non-immigrant status means that your spouse and children were given non-immigrant visas based on your non-immigrant status. For instance, if a student is given an F-1 "Academic Student" visa, then the spouse and child are given F-2 "Spouse and Child of an Academic Student" visas.

When Should I Apply?
We recommend that you apply as soon as you determine that you need to change to a different non-immigrant category. Please note, you must apply to change your non-immigrant category before you current non-immigrant status expires. Also, do not start new employment without first being approved for your change of status. The date your status expires can be found in the lower right-hand corner of your USCIS Form I-94 (Arrival-Departure Record). You should have received an USCIS Form I-94 when you legally entered the United States. (For more information, please see, How Do I Get an Arrival-Departure Record?.)

What If I Am Late Filing for a Change of Non-immigrant Status?
If you are late filing for a change of non-immigrant status and your current status has already expired, you must prove that:

1. The delay was due to extraordinary circumstances beyond your control;

2.The length of the delay was reasonable;

3.You have not done anything else to violate your non-immigrant status (such as work without USCIS approval);

4.You are still a non-immigrant (This means that you are not trying to become a permanent resident of the United States. There are some exceptions.); and

5.You are not in formal proceedings to remove (deport) you from the country.

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