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Extension Of Stay And Change Of Status

How can I extend my stay or change my status? we are often asked in our professional practice. Here is a summary of the most common inquiries:

  1. Can I extend or change my status as a visitor for pleasure or business?
  2. Yes, you may if you are still in status. Extraordinary circumstances may excuse a late filing.
  3. Can I apply to change from visitor to student status?
  4. Yes, although you cannot start school until the change of status has been granted. Authorized stay for a student is usually granted for the duration of stay until you finish school. If you have been in school for a year at the completion of your studies, you can receive Optional Practical Training (OPT) plus 60 days of grace after the completion of OPT.
  5. Can I change for a more permanent work status while I am on my OPT?
  6. Yes, you may change to a professional or highly skilled employee (H-1) as long as you do this before your authorized stay has expired or any other work visa.
  7. If I overstayed for 6 months or a year as a tourist, can I extend my stay?
  8. No, you cannot extend unless the Attorney General grants you a Waiver of Inadmissibility. This cannot be granted unless you are the spouse or child of a U.S. citizen. If you marry a U.S. citizen, you may apply for permanent residence even if you have overstayed. If you have a transit visa (C) or acrewman visa (D) or a fiancé visa (K), you cannot extend or change your visa.
  9. If I have an exchange visa (J) can I change my visa?
  10. You may not change the J-1 if it has a 2 year foreign residence required. This is because your country wishes you to return to your country to provide a needed skill.

You may apply for a waiver. To do this, you need a non-objection letter provided by the foreign office of your country directed to the Secretary of State of the U.S. The State Department would likely approve the Waiver, if you can show that you are performing work of national interest to the U.S., or a governmental agency intervenes on your behalf, claiming that you are integral to the work of a U.S. government project and that your departure would seriously disrupt this project.

  1. If I come to the U.S. as a visitor and I am accepted by a school within 60 days of my arrival, can I get a change to a student status?
  2. If a change of status is sought within fewer than 60 days of arrival, the Immigration Service will likely deny the application because the Immigration Service would presume that you had a preconceived intent to change status. Especially is this so, if you applied to a school before you entered as a tourist, then you would almost certainly be presumed to have entered the U.S. with a preconceived intent.
  3. If I leave the U.S. after my application has been filed but before it is approved, would the application continue?
  4. The Immigration Service would consider that you had abandoned the application if you leave the U.S. while the application is pending.
  5. If I have a skilled employee (H visa) or an intra company transfer (L visa), can I extend my visa or change my status, if I have stayed the maximum time allowed under these visas?
  6. You cannot extend your visa in H or L status if you have used up the maximum time allowable: 6 years for H and 5 or 7 year for L depending on whether the L is managerial or executive. If, however, you have a permanent residence application pending for not less that one year and not yet completed, then you may continue to obtain extensions until your permanent residence application is acted on.

If you need help or advise, call us at (212)944-9420

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