Extension of Non-immigrant Status
Who is considered a non-immigrant?
Individuals present inside the United States who are here on a short-term temporary basis and were issued a non-immigrant visa by the U.S. Department of State (DOS) are considered non-immigrants. The period of stay varies for different non-immigrant classifications but all are valid for individuals with no immigrant intent to live permanently in the United States. The allowed amount of time that a non-immigrant can stay in the U.S. depends on the information on Form I-94.
Read more about U.S. Non-immigrant Visas here.
What is a Form I-94?
In the past any foreign national who was admitted to the United States was provided with a paper Form I-94, Arrival-Departure Record by U.S. Customs and Border Protection (CBP). This Form I-94 was evidence of the date of admission, class of admission and admitted-until date. CBP has since automated the Form I-94 and stores all the electronically generated information online. If you need a copy of your I-94 record of admission, it can be obtained online at www.cbp.gov/I94.
How do I know if I am eligible to extend my stay in the United States?
You may apply for an extension of your status and temporary stay in the United States if:
You were lawfully admitted into the United States as a non-immigrant;
You have not committed any act that makes you ineligible to receive an immigration benefit (such as harsh crimes);
There is no other factor that requires you to depart the U.S. prior to extending status;
Your passport is valid for the entire period of requested stay.
How do I request an extension of stay with USCIS?
You may submit an application for extension of stay by completing and mailing Form I-539, but due to strict guidelines for the extension application it is strongly encouraged to hire an immigration lawyer. You may also file an extension request online using USCIS ELIS for an extension of stay before the expiration date on your Form I-94.
Your passport must be valid for the entire period of requested stay or your application will be denied.
If you are interested in requesting a change of status from one non-immigrant visa category to another or if the original reason for visiting the United States has changed, you may file a request for a change of status instead.
Am I eligible to extend my stay in the United States?
If you were admitted to the United States in any of the following non-immigrant statuses, you cannot extend your stay in the United States and must depart prior to the expiration date of your I-94:
C – Alien in Transit
D – Crewman
K-1 or K-2 – Fiancé(e) or Dependent of Fiancé(e)
S – Witness of Informant
TWOV – Transit Without Visa
WT or WB – Visa Waiver Program
When should I file Form I-539 and how long will it take to process my application?
It is important to note that processing times can vary for different types of applications. Our experienced Los Angeles immigration attorney suggests filing at least 45 days before your status expires.
Once you have received your Receipt Notice with your receipt number on it, you may track your case status online at www.uscis.gov.
What if I file for an extension of stay on time but USCIS doesn’t make a decision before my I-94 expires?
If USCIS does not make a decision by the date the I-94 expires then your lawful non-immigrant status ends and you are out of status. Even if you have timely applied to extend your non-immigrant status, it has still expired. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides an outcome of the extension.
Not sure when your I-94 expires? Visit www.cbp.gov/I94 to search your own records.
If your application for an extension of stay is approved, the approval will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be deemed to have been lawful. Alternatively, if your application is denied you will be required to depart the United States immediately.