Extension and Change of Nonimmigrant Status
Once a foreign national enters the U.S., the Department of Homeland Security assigns a document called I-94 which will replace foreign national visa stamp/sticker or ESTA during the foreign national’s stay in the U.S. This I-94 has the duration of the foreign national stay in the U.S. and which status foreign national was admitted under.
Sometimes understanding the difference between the visa expiration date and the length of time a foreign national has permission to remain in the United States can be confusing. These are very different terms.
A U.S. visa in a foreign national’s passport gives a foreign national permission to apply to enter the United States. A visa by itself doesn’t authorize entry to the U.S. A visa simply indicates that a foreign national’s application has been reviewed by a consular officer at a U.S. Embassy or Consulate, and that the officer determined the foreign national is eligible to travel to a U.S. port-of-entry for a specific purpose. The port-of-entry can be an airport, a seaport or a land border crossing.
At the port-of-entry, a U.S. immigration officer of the Department of Homeland Security (DHS) decides whether to allow a foreign national to enter and how long the foreign national can stay for any particular visit, as part of the admission process. Only the U.S. immigration officer has the authority to permit a foreign national to enter the United States.
The visa expiration date is shown on the visa along with the visa issuance date. The time between visa issuance and expiration date is called visa validity. The visa validity is the length of time a foreign national is permitted to travel to a port-of-entry in the United States.
It is important to note that there are circumstances which can serve to void or cancel the period of visa validity. If a foreign national overstays the end date of the foreign national’s authorized stay, as provided by the CBP officer at a port-of-entry, or United States Citizenship and Immigration Services (USCIS), the foreign national’s visa will automatically void or cancel unless:
- The foreign national has filed an application in a timely manner for an extension of stay or a change of status; and,
- That application is pending and not frivolous.
Upon arriving at a port of entry, the DHS official will determine the length of a foreign national’s visit.
On the admission stamp or paper Form I-94, the U.S. immigration inspector records either an admitted-until date or "D/S" (duration of status). If a foreign national’s admission stamp or paper Form I-94 contains a specific date, then that is the date by which the foreign national must leave the United States. If the foreign national has D/S on the foreign national’s admission stamp or paper Form I-94, the foreign national may remain in the United States as long as the foreign national continues the foreign national’s course of studies, remain in the foreign national’s exchange program, or qualifying employment. The admitted-until date or D/S notation, shown on the foreign national’s admission stamp or paper Form I-94 is the official record of the foreign national’s authorized length of stay in the United States. The foreign national cannot use the visa expiration date in determining or referring to the foreign national permitted length of stay in the United States.
If the foreign national came to the United States on a nonimmigrant visa and the foreign national wants to extend the foreign national’s stay the foreign national must apply with USCIS before the foreign national’s authorized stay, denoted on the foreign national’s admission stamp or paper Form I-94, expires.
The foreign national should carefully consider the dates of the foreign national’s authorized stay and make sure the foreign national is following the procedures. Failure to do so will cause the foreign national to be out-of-status.
Staying beyond the period of time authorized, by the Department of Homeland Security, and out-of-status in the United States, is a violation of U.S. immigration laws, and may cause foreign national to be ineligible for a visa in the future for return travel to the United States. If the foreign national overstays the end date of foreign national authorized stay, as provided by the CBP officer at a port-of-entry, or United States Citizenship and Immigration Services (USCIS), the foreign national’s visa will generally be automatically be voided or cancelled, as explained above.
Extension of Status
A foreign national may apply to extend their stay if:
- He/she was lawfully admitted into the United States with a nonimmigrant visa
- His/her nonimmigrant visa status remains valid
- He/she has not committed any crimes that makes him/her ineligible for a visa
- He/she has not violated the conditions of his/her admission
- His/her passport is valid and will remain valid for the duration of his/her stay
A foreign national may not apply to extend his/her stay if he/she was admitted to the United States in the following categories:
- Visa Waiver Program
- Crew member (D nonimmigrant visa)
- In transit through the United States (C nonimmigrant visa)
- In transit through the United States without a visa (TWOV)
- Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
- Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)
Change of Status
If a foreign national wants to change the purpose of his/her visit while in the United States, a foreign national (or in some cases a U.S. employer) must file a request with USCIS on the appropriate form before his/her authorized stay expires. For instance, if a foreign national arrived as a tourist but want to become a student, he/she must submit an application to change your status.
Until he/she receives approval from USCIS, he/she cannot change his/her purpose of visit in the United States. If a foreign national fails to maintain his/her nonimmigrant status, he/she may be barred from returning to and/or removed (deported) from the United States.
In general, a foreign national may apply to change your nonimmigrant status if he/she was lawfully admitted to the United States with a nonimmigrant visa, his/her nonimmigrant status remains valid, he/she has not violated the conditions of his/her status, and he/she has not committed any crimes that would make him/her ineligible.
A foreign national do not need to apply to change his/her nonimmigrant status if he/she wishes to attend school in the United States, and he/she is the spouse or child of someone who is lawfully admitted to the United States in any of the following nonimmigrant visa categories:
- Diplomatic and other government officials, and employees (A visa category)
- International trade and investors (E visa )
- Representatives to international organizations and their employees (G visa)
- Temporary workers (H visa)
- Representatives of foreign media (I visa)
- Exchange visitors (J visa)
- Intracompany transferees (L visa)
- Academic (F visa) or vocational (M visa) students (the dependent may attend elementary, middle or high school only; if the dependent wants to attend post-secondary school full-time he/she must apply for a change of status).
A foreign national may not apply to change his/her nonimmigrant status if he/she was admitted to the United States in the following categories:
- Visa Waiver Program
- Crew member (D nonimmigrant visa)
- In transit through the United States (C nonimmigrant visa)
- In transit through the United States without a visa (TWOV)
- Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
- Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)
If a foreign national is a vocational student (M-1), he/she may not apply to change his/her status to a(n):
- Academic student (F-1)
- Any H status (Temporary worker), if the training he/she received as a vocational student in the United States provided the qualifications for the temporary worker position he/she seeks.
If a foreign national is an international exchange visitor (J-1), he/she may not change his/her nonimmigrant status if:
- He/she was admitted to the United States to receive graduate medical training, unless he/she receives a special waiver.
- He/she is an exchange visitor and is required to meet the foreign residence requirement, unless he/she receives a waiver.
If he/she does not receive a waiver, he/she may only apply to change to a diplomatic and other government officials (A visa) or representatives to international organizations (G visa).
Visa Waiver Program Foreign Nationals
The only option for foreign nationals admitted on ESTA is to make a Satisfactory Departure request that, if granted, provides additional time for them to leave the country without overstaying their authorized stay.
According to the Code of Federal Regulations, “If an emergency prevents an alien admitted under [the VWP] from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.” This is called a Satisfactory Departure.
Satisfactory departure is granted only in limited cases and for serious emergencies, such as hospitalization, or conditions that cause flights to be delayed or cancelled for more than 24 hours (weather, worker strikes, or a pandemic, for example).
If a foreign national has been admitted under the VWP and an emergency is preventing he/she from departing the U.S. within his/her period of authorized stay, he/she may request that USCIS grant him/her a period of Satisfactory Departure, which cannot exceed 30 days. If his/her request is granted and he/she leaves within the window of the allotted time, he/she will be regarded as accomplishing him/her visit without overstaying his/her authorized stay. If a foreign national is visiting under the VWP and are not granted Satisfactory Departure, he/she may not stay in the U.S. beyond the initially authorized 90 days.