Immigration Options if Your U.S. Visa is Expiring

An overview of your options to extend your visa, change to another visa, or get a green card.

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Practice Areas: Green Card, Immigration Law, US Citizenship, US Visa

If you're in the United States on a nonimmigrant (temporary) visa, you are expected to leave the country when your status expires. If your visa is expiring soon or you are otherwise looking to stay longer (legally), you have three main options, depending on your circumstances. These include extending your current status, changing to another temporary status, or adjusting status to lawful permanent resident.

I'll cover the general eligibility rules and process of all three in this article, along with links to more in-depth information on each.

Extension of Status (EOS)

Nonimmigrant visa holders in valid (unexpired and qualifying) visa status may, in certain circumstances, extend their stay in the U.S. under their current nonimmigrant visa status.

Who Is Eligible?

You may apply to Extend your Status if:

(a) You were lawfully admitted into the United States with a nonimmigrant visa; (b) Your nonimmigrant visa status remains valid; (c) You have not committed any crimes that make you ineligible for a visa; (d) You have not violated the conditions of your admission; and (e) Your passport is valid and will remain valid for the duration of your stay.

Exceptions. You may NOT apply for extension of status if your nonimmigrant visa status is any of the following:

(a) Visa Waiver Program; (b) Crew member (D nonimmigrant visa); (c) In transit through the United States (C nonimmigrant visa); (d) In transit through the United States without a visa (TWOV); (e) Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa); or (f) Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa).

The EOS Process

To extend your nonimmigrant status in the United States, you must file a request with U.S. Citizenship and Immigration Services (USCIS) on the Form I-539, Application to Extend/Change Nonimmigrant Status before your authorized stay expires. If you remain in the United States longer than authorized, you may be barred from returning and/or you may be removed (deported) from the United States. To determine the expiration date of your authorized stay, check the date in the lower right-hand corner of your Form I-94, Arrival-Departure Record. USCIS recommends that you apply to extend your stay at least 45 days before your authorized stay expires.

See Applying for an Extension of a U.S. Visa or Change of Status for detail on the forms and procedural steps.

Change of Status (COS)

Nonimmigrant visa holders in valid (unexpired and qualifying) visa status may, in certain circumstances, stay in the United States for a different nonimmigrant purpose than the one listed on their current nonimmigrant visa.

Who Is Eligible?

You may apply for Change of Status if:

(a) You were lawfully admitted into the United States with a nonimmigrant visa; (b) Your nonimmigrant visa status remains valid; (c) You have not committed any crimes that make you ineligible for a visa; (d) You have not violated the conditions of your admission; and (e) Your passport is valid and will remain valid for the duration of your stay.

Exclusion Categories. You may NOT apply to change your nonimmigrant status if you were admitted to the United States in the following categories:

(a) Visa Waiver Program Crew member (D nonimmigrant visa); (b) In transit through the United States (C nonimmigrant visa); (c) In transit through the United States without a visa (TWOV); (d) Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa); or (e) Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa).

M-1 Limitation to COS. If you are a vocational student (M-1), you may NOT apply to change your status to a(n):

(a) Academic student (F-1); or (b) Any H status (Temporary worker), if the training you received as a vocational student in the United States provided the qualifications for the temporary worker position you seek.

J-1 Limitation to COS. If you are an international exchange visitor (J-1), you may NOT change your nonimmigrant status if:

(a) You were admitted to the United States to receive graduate medical training, UNLESS you receive a special waiver; or (b) You are an exchange visitor and are required to meet the foreign residence requirement, UNLESS you receive a waiver. [NOTE: If you do not receive a waiver, you may ONLY apply to change to a diplomatic and other government officials (A visa) or representatives to international organizations (G visa)].

The COS Process

To change your visa status while in the United States, you (or in some cases your employer) must file a request with USCIS on the appropriate form before your authorized stay expires. USCIS recommends that you apply as soon as you determine that you need to change to a different nonimmigrant category.

See Applying for an Extension of a U.S. Visa or Change of Status for detail on the forms and procedural steps.

Important Cautionary Note

Until you receive approval from USCIS, do NOT assume the status change has been approved, and do NOT change your activity in the United States. The consequences of failure to maintain your nonimmigrant status can be very severe -- you may be barred from returning to and/or removed (deported) from the United States.

Adjustment of Status (AOS)

Adjustment of Status is the process of obtaining Lawful Permanent Resident (green card) status in the United States without having to leave the United States to do so. It is important to distinguish AOS from EOS / COS because AOS concerns obtaining immigrant status, versus changing (COS) or extending (EOS) nonimmigrant status. It is also important to realize that this option is not available to everyone. It is mainly useful for people who are in lawful status in the U.S. (with a valid visa) or who entered the U.S. lawfully and are green-card eligible as the immediate relative of a U.S. citizen.

First: Determine Your Basis to Immigrate

The first step in the adjustment of status process is to determine if you fit into a specific immigrant category. Most immigrants become eligible for permanent residence (greencard) through a petition filed by a family member or employer. Others may become permanent residents through first obtaining refugee or asylum status, or through other special provisions. It is advisable to consult with a qualified immigration lawyer at this point, to be certain that you understand all your options.

Second: File the Immigrant Petition

When you know what category best fits your situation, in most cases you will need to have someone file an immigrant petition on your behalf. (a) Family Based: Family based categories require that a U.S. citizen or permanent resident relative file a Form I-130, Petition for Alien Relative, on your behalf; (b) Employment Based: Employment based categories usually require the intending U.S. employer to file a Form I-140, Petition for Alien Worker, on your behalf. Entrepreneurs who intend to invest significant amounts of capital into a business venture in the U.S. may file Form I-526, Immigrant Petition by Alien Entrepreneur on their own; (c) Special Classes: In specific circumstances, immigrants may file a Form I-360, Petition for Amerasian, Widow(er), and Special Immigrant, or have one filed on their behalf; (d) Humanitarian: Most humanitarian programs do not require an underlying petition, but additional requirements may need to be met before there can be an adjustment of status.

Third: Check Visa Availability

You may not file your Form I-485 until a visa is available in your category. If an immigrant visa is currently available to you, you may be able to apply for permanent residence status on Form I-485.

Fourth: File Form I-485, Application to Register Permanent Residency or Adjust Status

Regardless of whether a petition must be filed and approved prior to your filing Form I-485 or whether it may be filed concurrently, you will need to apply for permanent residence on Form I-485 at the appropriate time. (Note: Some categories may require a different form than Form I-485.)

Fifth: Go to Your Application Support Center Appointment (Biometrics)

After you file your application, you will be notified to appear at an Application Support Center for biometrics collection, which usually involves having your picture and signature taken and being fingerprinted. This information will be used to conduct your required security checks and for eventual creation of a green card, employment authorization (work permit) or advance parole document.

Sixth: Go to Your Interview (If Your Application Requires One)

You may be notified of the date, time, and location for an interview at a USCIS office to answer questions under oath or affirmation regarding your application. You must attend all interviews when you receive a notice.

Seventh: Get Your Final Decision in the Mail

After all paperwork has been received, interviews conducted (if necessary), security checks completed, and other eligibility requirements reviewed, your case will be ready for a decision by USCIS. In all cases, you will be notified of the decision in writing.

Conclusion

Each situation is different, so visa holders who are interested in learning more about changing the status of their visa are encouraged consult with an immigration lawyer on the facts and nuances in their respective situations. Individual facts vary, and can create circumstances where certain immigration opportunities and/or risks are more likely to arise. We hope you have found this information helpful.

About the Author
Rachel Van Wormer is an immigration attorney in the Washington D.C. metro area. The founder of Van Wormer Law, LLC, she represents individuals and businesses in all aspects related to U.S. immigration.

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