5 tips from immigration lawyer for change of status application

If I am applying to change my immigration visa status with USCIS, what should I prepare?

This article offers tips to applicants who have entered the United States as a tourist or a student but wish to change to another visa status to remain in the United States longer or for other purposes. US Immigration regulations allow foreign nationals to apply for a change of their nonimmigrant status on Form I-539. This application form can be found on US Citizenship & Immigration Service’s website and I highly recommend that applicant for change of status read the instructions to Form I-539 carefully.

Generally, most nonimmigrant visa status are concerned with similar evidence to establish eligibility for an approval. These evidence include (a) evidence that the new visa status is appropriate for the applicant’s intended activity, (b) evidence that the applicant has a clear plan of departing from the United States, (c) evidence that you have sufficient financial means to support yourself through the duration of next visa status, (d) evidence that you have not violated immigration law since entering the United States.

Tip 1: You should submit evidence that the new visa status is appropriate for your intended activities in the United States.

Take for example, a change of status application from tourist (B-2) status to student status (F-1); you must show that you are qualified to receive the F-1 visa status because you will be engaging only in the activities of an international student. This means that you will need to apply for admission into a school that issues the proper form for international student, also known as Form I-20. In order to qualify as an international student, you will have to satisfy the schools’ requirement of showing financial support and ability to pay for tuition, so you might be required to submit evidence of a financial sponsor if you do not have sufficient funds to pay for the program and living expenses.

Take another example, a change of status from student (F-1) status to B-2 because you need to stay a few more months to tour the United States after the end of your Optional Practical Training, the one year work permit program after F-1 status. You will need to show that you will be engaging in activities that are strictly tourist and that you will not be engaging in any work. Perhaps a letter from your employer stating the end date of your employment would be helpful to establish that you do not plan to perform any work after the OPT status officially ends.

Tip 2: You should submit evidence that you have a clear plan of departing from the United States after the new visa status ends.

Evidence of departure is normally very simple to establish through an airline ticket. Therefore, it is always advisable to reserve a return ticket and be able to show evidence of the reservation with the application for change of status (Form I-539). Evidence that employment will start after a certain date out of the United States can also serve as clear evidence of your plan to depart from the United States after new visa status ends. If evidence is not yet available for your departure from the United States, I recommend submitting a detailed declaration to establish your plans of departing from the United States.

Tip 3: You should submit evidence that you have sufficient funds to pay for your expenses should the change of status application be approved by USCIS.

Another important concern of United States immigration law is unlawful employment. Therefore, it is important to submit evidence of your financial state especially if you are applying to change status to another long term visa status like the student (F-1) status. I recommend putting together a list of expenses, including rent, food, transportation, and other foreseeable expense and showing that the amount of funds you have in your possession (or funds that will be provided to you by a benefactor) is enough to sustain you through the period of the new visa status. If you have a benefactor, it is important to submit evidence of your benefactor’s financial strength to supplement your application for change of status.

Tip 4: You should firmly state that you have not engaged in unlawful employment or unlawfully enter the United States since your last entry. You should also state that you have not committed any crime, nor have you been arrested by police or accused of a crime.

These statements should be included in the detailed declaration that you will write as the applicant for change of status. It is also helpful to include any other information that the USCIS  officer would like to read about why you would like to change immigration status. You should also explain why it would be detrimental for you to apply for a visa from the US Embassy or consulate abroad. The declaration should not exceed one page but should capture all of the information that the USCIS officer would like to understand about your situation.

Tip 5: You should know that leaving the United States before the application is decided by USCIS will cancel the application.

Many applicants for change of status do not know that their application for change of status is automatically cancelled if they leave the United States before the application is adjudicated by USCIS. This is because when the applicant is no longer in the United States, there is no “visa status” to change the applicant to, so the application is automatically cancelled.  To re-enter the United States, you will have to obtain the correct visa from the US Embassy or consulate in order to return to the United States.

The best time to submit the application for change of status is probably 90 to 120 days before the your I-94 expires if you would like to ensure that you can preserve your entry visa. Because USCIS takes roughly 90 to 120 days to make a decision on the change of status application, in the event of a denial, if the i-94 has not expired and you depart from the United States, then your entry visa should be secured from cancellation.

However, if you are unable to file the application at such an early time, then I would recommend filing the application as late as possible but before your form I-94 expires. This way, if you are able to depart the United States while your application for change of status is pending, you will not be considered to have unlawfully remained in the United States. Because you are not considered to have unlawfully remained in the United States past your I-94 date, you will not be at risk of having your entry visa cancelled.

If you have any questions about applying for a change of status, please feel free to click here to submit a free consultation request to our office and get answers from our immigration lawyer.

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