Extension of Nonimmigrant Status: A Brief Guide

If an alien wants to stay in the U.S. past the departure date listed on his or her Arrival-Departure Record, he or she must apply for an extension of stay.

What is Extension of Stay?

As a rule, non-immigrant travelers are admitted to the United States for only short periods of time on specific nonimmigrant status (work visa, student visa, visitor visa etc) which is assigned based on the purpose of his or her visit. If a non-immigrant visitor wants to stay in the country past the temporary period authorized by the immigration officer on the alien’s Arrival-Departure Record, he or she must request an extension of stay.

However, there are some conditions that the visitor needs to meet to apply for extension. Most importantly, the visitor is required to prove that he or she has been compliant with U.S. immigration laws during the stay. Additionally, any violation of immigration laws may result in deportation for the alien.

Who can extend their non-immigrant stay?

The eligibility criteria for extension of non-immigrant status may be better explained if we start with the categories that are considered Ineligible. Mainly two categories of exchange visitors as well as some vocational students and holders of certain types of visas are considered ineligible.

The two categories of exchange visitors ineligible are:

  1. J visa holders who came to the U.S. to receive graduate medical training who have not received waivers; and
  2. J visa holders who have foreign residence requirements before they may be admitted to another nonimmigrant category who have not obtained a waiver of this requirement. This latter category of aliens may only apply for changes of status to that of to foreign governmental officials or international organization representatives.

For aliens admitted in the M visa category for vocational students, there are two restrictions on changes of status:

  1. They may not change their status to that of academic students (F visa).
  2. They may not change their status to that of a temporary worker (an H visa) if the only reason they qualify for the category is the vocational training they received in the U.S.

Additionally, aliens admitted with the following visa types are ineligible to change their nonimmigrant status:

a. The Visa Waiver Pilot Program;
b. The Guam Visa Waiver Program;
c. D crewman visas;
d. C visas for aliens in transits or transit without visas;
e. K visa holders, fiance or spouses of U.S. citizens and their dependents; and
f. S informant visas and their families.

Who qualifies for extension of stay?

Non-immigrants who do not fall into any of the above mentioned categories must fulfill four basic requirements to show eligibility for an extension of stay:

1. The non-immigrant must have been lawfully admitted to the U.S.
2. The non-immigrant’s nonimmigrant status must be valid at the time the application for extension is filed.
3. The non-immigrant must not have committed any acts that would make him or her ineligible for an extension.
4. The alien’s passport must be valid for the entire planned stay in the U.S.

Note: The application and appropriate fee must be filed before the departure date on the non-immigrant’s Arrival-Departure record, (USCIS recommends filing at least 45 days before the scheduled departure date). If the application to extend is filed after the non-immigrant’s departure date has passed, the non-immigrant must show that the delay was reasonable, that it was due to extraordinary circumstances he or she could not control, and that he or she has not violated nonimmigrant status in any other way.