Corporations / Employees
Visa Extension and Change of Status
You must file the request as soon as you know that you may need to change the nonimmigrant classification or stay in the USA.USCIS recommends filing at least 45 days before your permitted stay expires. You can file after the 45 days window if circumstances demand it, and this will extend your stay while the application is pending.
If you file after you are “Out of Status’” – that is, after your status under a B1 or B2 authorization has expired and consequently your I-94 is now expired as well – it will be necessary to show that the circumstances leading to the delay in filing were beyond your control and could not have been reasonably predicted. Extraordinary circumstances considered by USCIS include events such as medical emergencies, theft or loss of travel documents including your passport, and acts of God. Another reason that may be deemed acceptable is if you attempted to file the request but made errors while filing the form, or when paying the filing fee or during the preparation and attachment of certain mandatory documents. Since proving these kinds of malfunctions to the satisfaction of the USCIS agent reviewing your request can be a challenge, it is recommended that you first consult a skilled immigration attorney about the best approach available when attempting to request an Extension of Status.
For reference, Change of Status and Extension of Status are terms that apply to those in the US pursuant to a nonimmigrant status such as B2, H-1B, E-2, TN, L-1 or F-1. If an H-1B worker wishes to change their status to H4, a “Change of Status” request needs to be filed. Whereas in the case of a B-2 nonimmigrant’s desire to extend their I-94 time with an Extension of Status petition, the B-2 status itself cannot be changed.
To avoid any legal and bureaucratic complications it is best to apply for a Change of Status or Extension of Stay request prior to the expiration of your I-94 Duration of Stay.
COVID 19 Delays in Change of Status and ExtensionThe DHS recognizes that COVID-19 has directly affected the immigration system and everything adjacent. If you are a nonimmigrant and find yourself unexpectedly stuck in the US beyond your authorized period of stay due to COVID-19, here are some of the main points that you should consider:
1. Apply for Extension/ Change of Status: One of the most direct remedies available is to file an application for extension of stay or change in status. You can do so by filing the form online. USCIS continues to accept and process these applications without any sort of pandemic delay.
2. File in a timely manner:Nonimmigrants will not be conosidered unlawfully present in the US while their EOS/COS application is pending. In most cases employment authorization with an existing employer subjected to the same terms and conditions can be extended for 240 days after the expiry of Form I-94.
3. Appeal to circumstances beyond your control: If the applicant files for an extension after the authorized period, it may be helpful to request leniency on the basis of persistent chaos resulting from the pandemic and associated social problems. USCIS in its discretion may excuse the failure to file on time if you can successfully argue that the present circumstances generated problems beyond your control. As with all USCIS petitions, the burden of proof lies on the applicant and it is essential to consult an immigration attorney to make sure your submission is well presented and sufficiently robust.
Fee and Documents for Form I-539After filing the form it is important to provide the supporting documents and file the fee payment. The filing fee for Form I-539 is $370, along with $85 required for biometric processing. The only applicants exempt from the filing fees are people changing to or from A-1, A-2, A-3, G-1, G-2, G-3, G-4, G-5, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 status.
Paper filing vs Online filingExtension of Stay or Change of Status can be filed through either paper mail or online. USCIS processes applications filed through channel in an equivalent and orderly manner. Online filing has an advantage in that it will give you an immediate confirmation from the USCIS that your application has been accepted, whereas you might have to wait a few weeks to get a similar confirmation with a paper filed request. On the other hand, paper filing is preferential if there are dependents included under the same application. In other words, if there is only one applicant (primary), you should most likely file the extension or change of status online. If there are dependents included in the request, the online portal won’t allow for them to be added to the main petition, and so the request should be filed via the post office. There is also a slight difference in cost between the two options. Given the relative merits of each, the choice should be made in consideration of your specific circumstances.
If you find yourself needing advice on how to file your request, or if you need to file an extension of stay for your parents or are late in filing a change of status for yourself, call Rijal Law Firm today. We will help you figure it out.