Individuals admitted to the United States on a nonimmigrant visa (meaning, any visa other than an immigrant visa) can in some cases extend their stay in the country by applying to the U.S. Citizenship and Immigration Services (USCIS) for an extension of nonimmigrant status. This is done using Form I-539, Application to Extend/Change Nonimmigrant Status. If granted, this allows the person to stay legally in the United States for a certain amount of time, as designated by USCIS. The primary benefit of seeking an extension of status is that it allows a person to avoid having to leave the country to apply at a U.S. embassy or consulate abroad for a new visa or to depart so they can re-enter on a multi-entry visa - they can remain in the United States while the application is pending and do not have to leave the country if the application to extend status is granted. Certain complex cases require special care; you should consult an immigration attorney if you believe the immigration authorities might deny your application for an extension of status. Informing an immigration lawyer of immigration problems you're facing, whether in the extension of status context or involving any another aspect of immigration law, is advised - a Dallas immigration lawyer from the law firm Heartland Immigration will give you a free immigration consultation if you just call 1-855-USA-IMMIGRATE.
What is an extension of status?
Most people admitted to the United States as a temporary visitor are given a certain date by which they must leave the country. Contrary to what many people think, this date is not printed on the person's U.S. visa - the date on the visa marks the last day on which the individual can enter the U.S. Rather, the date by which a person must leave the U.S. for a given trip is indicated on a document that the immigration officials (Customs and Border Protection) give to them at the port of entry (usually the airport at which one arrives or at a border crossing or ship port). This is called Form I-94; it is a small white piece of paper that is normally stapled into a person's passport when they enter the U.S. Note that some persons (e.g., students) are admitted for what is called "duration of status," and don't receive an I-94. They are "in status" as long as they continue to do the activity for which they were admitted (for example, to attend university). A person who didn't receive an I-94 and isn't sure how long they can stay in the country or who wants to extend their stay should consult either their school (in the case of a student) or an attorney for immigration advice.
A visitor must leave the United States by the date listed on their I-94 unless they either change to a different nonimmigrant status that allows them to stay longer or seeks an extension of their present nonimmigrant status. An extension of status extends a person's nonimmigrant status (for example, a person in the U.S. on a tourist visa would have their status as a tourist, on a B-2 visa, extended) beyond what is stated in the I-94, for a time designated by USCIS. USCIS often, but not always, grants six month extensions (at least for most nonimmigrant classifications), during which time the person can continue doing whatever is authorized by their nonimmigrant classification (so, for example, someone in a classification that allows employment, such as a person with an H-1B visa, could continue working).
Absent an extension of status, a person who wanted to be in the United States beyond their authorized period of stay (again, this is usually whatever is indicated on the I-94) would have to leave the United States and (in the event that they have a multi-entry visa) re-enter or (in the case that they had a single-entry visa) apply for a new visa at a U.S. embassy or consulate abroad. Filing for an extension of status, then, saves a huge hassle and a lot of money by allowing a person to achieve their goal - getting more time in the U.S. - without having to leave the country.
Who can apply for an extension of status?
Noncitizens present in the United States on a tourist visa and most other nonimmigrant visas can apply for an extension of status as long as they entered the country legally and haven't done anything since entering that would make them ineligible for an immigration benefit (such as working if their visa doesn't allow employment, or committing certain crimes).
Persons who entered the U.S. on the following visas (and their dependents, as applicable) can notextend their nonimmigrant status:
- C, alien in transit
- D, crewman
- K-1, fiancé;
- F, student (they can use Form I-539 to seek reinstatement of their F status, but for extensions they should consult their school or consult with a lawyer for immigration advice)
Additionally, persons admitted under the Visa Waiver Program can notextend their status.
It's worth noting that USCIS has discretion in deciding whether to grant the extension - the adjudicating officer may decide, for any number of reasons, that you must seek a visa abroad. Furthermore, it should be pointed out that employers of individuals seeking an extension of an employment-based status must submit an I-129 to USCIS.
When should a person apply for an extension of status?
A person should apply to USCIS for an extension of status, using Form I-539, at least 45 days (if possible) before their current authorized stay in the U.S. expires. Those wanting to extend their stay in the United States should definitely apply before their current status expires. Otherwise, they risk accruing unlawful presence in the United States; this can have serious adverse effects, including possibly deportation and making it very difficult to get a visa for the U.S. in the future.
USCIS sometimes accepts applications for extension of status after the person's current authorized stay has expired, but an individual should not count on USCIS accepting it or granting the extension. Where one does apply after their nonimmigrant status has expired, they must demonstrate to USCIS in order to have their application considered that:
- The delay in applying was due to extraordinary circumstances beyond the person's control;
- The length of delay in filing the application to extend status was reasonable;
- They have not otherwise (meaning, other than being out of status due to their authorized stay having ended) violated their status;
- They are still a bona-fide nonimmigrant (i.e., they aren't seeking to stay permanently in the United States); and
- They are not in removal (deportation) proceedings.
An individual applying to extend status after their period of authorized stay has already passed is strongly encouraged to speak with a lawyer for immigration advice before filing the application with USCIS. An experienced immigration attorney can help a person explain their circumstances in a way that may make USCIS more amenable to granting the extension.
How long will it take for USCIS to decide on my application to extend status?
It takes USCIS between two and seven months to adjudicate an application for extension of status, depending on to which service center the application is submitted.
Can an individual work after their status has expired as long as an application to extend status is pending with USCIS?
A person whose original status has expired can continue to work if that status allowed the individual to work and they filed an application for extension of status with USCIS before their status expired. They also must not have otherwise (other than being out of status due to their authorized stay having expired) violated their status. Such a person can work only until USCIS denies their application to extend status or for 240 days, whichever occurs first.
Please don't hesitate to give one of our Dallas immigration lawyers a phone call if you have additional questions about extensions of status or about any other immigration-related matter. We offer a free immigration consultation, and our prices beat those of the competition. Informing an attorney of immigration challenges faced by you or a loved one is highly advised, as US immigration law is extremely complex. Give Heartland Immigration a call today: 1-855-USA-IMMIGRATE