Who Needs to Apply
When you are admitted into the United States, a U.S. official will assign you a nonimmigrant 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 INS to change your nonimmigrant status. For instance, if you arrived as a tourist, but want to become a student or employee you must submit an application to change your status with the INS.
In order to qualify to apply for a change of nonimmigrant status, a nonimmigrant alien must be in lawful nonimmigrant status. This means that the applicant has not overstayed the departure date shown on his or her arrival/departure record (form I-94), nor engaged in unauthorized employment or done anything else in violation of his or her nonimmigrant status.
Late Filings for a Change of Nonimmigrant Status
If you are late filing for a change of nonimmigrant status and your current status has already expired, you must prove that:
- The delay was due to extraordinary circumstances beyond your control;
- The length of the delay was reasonable;
- You have not done anything else to violate your nonimmigrant status (such as work without INS approval);
- You are still a nonimmigrant (This means that you are not trying to become a permanent resident of the United States. There are some exceptions.); and
- You are not in formal proceedings to remove (deport) you from the country.
How to Apply
Depending upon the nonimmigrant category into which the applicant seeks a change of status, two different application forms are used. For those who seek a change of nonimmigrant status into E, H, L, O, or P classification, form I-129 (with the appropriate supplement) is used. This is a combined petition and change of status application. For those seeking all other nonimmigrant classifications, an application for change of nonimmigrant status is made on form I-539. Spouses and children of applicants for change of status into E, H, L, O, or P classification must file their own application, using form I-539.
These applications should be filed with the INS regional service center having jurisdiction over the place where the applicant is living.
Intent When Entering U.S.
The INS follows the “30/60 day rule” in adjudicating most applications. If a person applies for a change of nonimmigrant status within 30 days of arriving in the U.S., the application is presumed to be fraudulent. The reason for this is that they doubt that a person who applies for a change of status within 30 days of entry was truthful when he or she stated their reason for coming to the U.S. when they originally entered. This presumption may be rebutted, but applicants should be aware of it.
Applicants who apply more than 60 days after entry are presumed to be acting in good faith. Applicants who apply between 30 and 60 days are suspect, but not presumptively fraudulent.
The INS has recently spoken to the issue of an applicant’s status when the INS has not acted on their application for change of nonimmigrant status by the time the applicant’s I-94 expires.