Can You Stay in the U.S. Legally While in Between Visas?

Here's how to correctly handle applying to extend status change status from one visa to another without getting into a situation where you risk deportation.

By , Attorney · Capital University Law School

If you are a foreign-born person in the U.S. with nonimmigrant status (usually meaning you entered on some sort of visa), it's important to avoid falling out of immigration status and being in the United States unlawfully. But if you want to switch from one immigration status to another without leaving the United States, it can be tricky, timing-wise. There are legal ways make the switch even with a time gap in between, but only if you make sure that you never let one status lapse without having another one in the works.

We'll look closer at how to do that, and thus maintain your right to be in the U.S., within this article.

What Happens When Your Permitted U.S. Stay Ends

As the holder of a nonimmigrant (temporary) visa, you probably know that your permitted stay in the U.S. will expire at some point. That expiration date is most likely specified on your Form I-94 Arrival/Departure Record.

(F-1 student visa holders are an exception; their visa usually says "D/S" for duration of status, meaning they can stay in the U.S. until the completion of their studies and any authorized employment, known as Optional Practical Training, following graduation.)

When you reach the end of your permitted U.S. stay, plus any "grace period" that might be allowed under the terms of your visa, you are expected to leave immediately. You no longer have lawful status.

In many situations, even though your visa stamp in your passport, which you received from the U.S. consulate or embassy abroad, still might be valid on its face, it can become automatically void. At this point, unless there are compelling circumstances beyond your control, or you fall within another exception, it is too late to think about taking action to obtain a new legal status in the United States. Even if you qualify for it, the fact that your status has expired means that you cannot stay in the U.S. to apply for it.

To avoid this result, plan ahead and take action to extend or change your status (as described below) BEFORE your expiration date arrives.

Exceptional Situations Where a Gap in Status Can Be Overcome

Some notable exceptions to the above rule apply. For example, if you entered the U.S. on a visa and later decide to marry a U.S. citizen, you can apply for a U.S. green card (lawful permanent residence, via the procedure known as adjustment of status) even after your expiration date, without having to leave the United States first. Realize, however, that your stay will be unlawful up until the day you turn in your adjustment of status application, which means you are at risk of being caught and placed into removal proceedings.

Another important exception applies to people who have faced persecution in their home country or who fear they would be persecuted upon return. They may apply for asylum even if their permitted time under a visa has run out. However, they are expected to submit their application either within one year of U.S. entry or one year of the expiration date of their permitted stay, depending on current policy. For the eligibility rules, see Who Is Eligible for Asylum or Refugee Protection in The U.S.?

Some Visa Holders Can Apply to Extend Their Status in the U.S.

If you act in a timely manner, you might be able to get an extension of status under your current visa (or change your status to another one, described farther below). Most U.S. visas allow at least one extension.

However, certain entrants cannot extend their stay under any circumstance, including those who entered:

  • without a visa, using Visa Waiver Program (VWP)
  • as a crew member (with a D visa)
  • in transit with a C visa
  • in transit without a visa (TWOV)
  • as the fiancé(e) of a U.S. citizen or dependent of a fiancé(e) (K visa), or
  • as an informant (or accompanying family member) with information on terrorism or organized crime (S visa).

If you hold any other type of visa, you will need to look into the length of the possible extension and whether there is a maximum set on the number of years you can spend in the U.S. on that visa. For example, if you entered the U.S. on a B visa (a visitor for business or pleasure), you can extend you stay for up to six months, for a maximum stay of one year. Holders of work-based visas can usually extend their stays even longer, assuming their employer wishes to keep them on.

Once you submit your application for an extension of status, you are permitted to remain in the U.S. until you receive a decision from U.S. Citizenship and Immigration Services (USCIS)—even if your permitted stay expires while USCIS is considering your application.

Some Visa Holders Can Apply to Change or Adjust Their Status in the U.S.

If you qualify for another type of visa than the one you are currently on, or for a U.S. green card (lawful permanent residence), you will likely be able to apply for it without leaving the United States. You would do so through either a change of status or an adjustment of status application.

Again, however, you will need to submit your application before your permitted stay under your old visa runs out (subject to exceptions, such as for marriage to a U.S. citizen and applying for asylum, as described above).

To apply to change immigration status to another temporary one, you fill out the same form as you would for an extension; Form I-539. See Applying for an Extension of a U.S. Visa or Change of Status for details. Note that if you're changing to a work visa, your employer will submit an I-129 petition to sponsor you for work authorization and change your status.

If eligible to change from a B visa visitor to an F-1 student visa, keep in mind that you might need to extend your B-1 visa before or concurrently with your F-1 change of status application. That means two separate applications.

To apply to adjust status and become a permanent resident, you would likely need to have a family member or employer submit a visa petition for you (typically Form I-130 for family petitions or Form I-140 for employer petitions). After USCIS approves this, you would file Form I-485 and supporting documents with the agency. (In some cases, however, the initial petition and the I-485 and so on can all be filed with USCIS at once, or concurrently. See, for example, Filing an I-140 and I-485 Concurrently to Speed Up Receiving Employment-Based Green Card.)

This is a complex area of the law, so be sure to consult an immigration lawyer for help.

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