CHANGE OF NONIMMIGRANT STATUS

 

By Jeri. H. Flynn

March 2000

 

 

I.           INTRODUCTION

 

This article will discuss the considerations involved when a person present in the United States in one nonimmigrant (tempo­rary) status decides to engage in a different primary activity only permitted under a different nonimmigrant (temporary) status.  For example, a B-2 tourist decides to attend school, or an F-1 student decides to take up other than school-approved employment.  In such situations, the nonimmigrant has two options.

 

The first involves an application to the Immigration and Naturalization Service (AINS@) to request a change of status to a nonimmigrant classification appropriate to the proposed activity.  Change of status is distinct from "adjustment of status," which is the process by which a nonimmigrant becomes a lawful permanent resident within the United States, thereby converting from temporary to permanent status.  Adjustment of status is discussed in another article in these materials.

 

The second option is for the person to leave the United States, apply for the appropriate visa at a U.S. consulate abroad, and then re-enter the U.S. in the correct nonimmigrant classifica­tion.

 

 

II.            AUTHORITIES

 

A. The Statute -- The Immigration and Nationality Act of 1952, as Amended ("INA") [1]

 

INA ' 248, 8 USC ' 1258, is the primary statutory reference for change of nonimmigrant classification.  Secondary references are INA '' 101, 212, 244, 247, and 238(c), 8 USC 1101, 1182, 1254, 1257, and 1228(c).

 

B. The Regulations -- The Code of Federal Regulations ("CFR")

 

8 CFR ' 248 is the primary reference.  Also relevant are 8 CFR '' 212, 214, and 217 and 22 CFR ' 41.

 

 

III.            GENERAL ELIGIBILITY

 


INA ' 248, 8 USC ' 1258,  provides that the Attorney General may authorize a change from one nonimmigrant classification to another in the case of an alien who was lawfully admitted to the United States as a nonimmigrant, who is continuing to maintain that status, and who is not inadmissible for having been unlawfully present. [2]

 

A.            The applicant must have been lawfully admitted to the United States as a nonimmi­grant.  8 CFR ' 248.1(a).

 

B.            The applicant must be maintaining nonimmigrant status.  8 CFR '' 248.1(a) and (b). [3]

 

1. The application for change of status generally must be submitted before the alien's authorized stay expires.

 

In order for an untimely filed application for change of status to be granted, it must be determined by the INS that:

 

a. the failure to file a timely application was due to Aextraordinary circumstances beyond the control of the applicant@ and Athe Service finds the delay commensurate with the circumstances@;

 

b. the alien has not otherwise violated the nonimmigrant status;

 

c. the alien is a bona fide nonimmigrant; and

 

d. the alien is not the subject of removal proceedings under 8 CFR ' 240. [4]

 

Practice Pointer:  Under the revised language of INA ' 214(h), 8 USC ' 1184(h), an alien who is the beneficiary of a petition for preference status or has otherwise sought permanent residence in the U.S. is not precluded from requesting change of nonimmigrant status to H-1 or L status.  Thus, while the existence of such petitions should be disclosed, this cannot be the sole basis for denial.  8 CFR ' 214.2(H)(16)ii) authorizes denial of an extension of stay of an H-2A, H-2B or H-3 alien if a permanent labor certification has been approved or a preference petition is filed by the H petitioner. 

 


2. The INS takes the position that an applicant who obtains "voluntary departure" status -- even if he or she  is within the time limits of a grant of voluntary depar­ture and was never in deportation proceedings -- is not eligible for a change of status. [5]   However, if a motion to reopen were filed and granted, and the alien's previous nonimmigrant status were reinstated, the alien would again be eligible for change of status.

 

3. The INS will consider any conduct by the applicant relating to the mainten­ance of the status from which the applicant is seeking a change. [6]   For example, an alien who has violated his or her status by accept­ing unauthor­ized employment will most likely be denied a change of status.  This would be true even if the failure to maintain status would not lead to deportation proceedings, such as would be the case with an E-2 dependent.  INS Operations Instruction (AOI@) 214.2(e).

 

4. For the purpose of change of nonimmigrant status under INA ' 248, 8 USC ' 1258, an alien who has been granted Tempo­rary Protected Status ("TPS") pursuant to INA ' 244, USC ' 1254, is considered as being in and main­taining lawful status as a nonimmi­grant during the period of granted TPS. [7]  

 

C.            IIRAIRA added the additional eligibility requirement for change of status that the alien not be inadmissible under INA ' 212(a)(9)(B)(I), 8 USC ' 1182(a)(9)(B)(I), unless inadmissibility had been waived under INA ' 212(a)(9)(B)(v), 8 USC ' 212(a)(9)(B)(v).  One author has pointed out that this amendment is "baffling."  She states:  "The provision does not seem necessary since an overstay is not eligible to change status even if admissible under ' 212(a)(9)(B)(I).  Furthermore, a nonimmigrant is not eligible for a ' 212(a)(9)(B)(v) waiver.@ [8]

 

D.            The applicant for change of status must be qualified for the new visa status and meet the eligibility require­ments for the classification sought.  8 CFR ' 214. [9]


 

IV.           STATUTORY INELIGIBILITY

 

A.            INA ' 248, 8 USC ' 1258, precludes a change of status from the following non­immigrant classifications to any other nonimmi­grant class.

 

1. An alien classified as a nonimmigrant under subparagraphs 8 (transit), (D) (crewman), or (S) (witness/informant) of INA ' 101(a)(15), 8 USC ' 1101(a)(15). [10]

 

2. An alien classified as a nonimmigrant under subparagraph (K) (fiancé(e)) under INA ' 101(a)(15), 8 USC ' 1101(a)(15). [11]   Further, no alien may change status to fiancé(e) classifica­tion under INA ' 101(a)(15)(K), 8 USC ' 1101(a)(15)(K). [12]

 

3. An alien classified as a nonimmigrant under subparagraph (J) (exchange visitor) of INA ' 101(a)(15), 8 USC ' 1101(a)(15), who came to the United States to receive graduate medical education or training under INA ' 248(a)(2), 8 USC ' 1258(a)(2), regardless of the applicability of the two-year foreign (i.e., home) residence requirement. [13] [14]

 

4. An alien classified as a nonimmigrant under subparagraph (J) (exchange visitor), of INA ' 101(a)(15), 8 USC ' 1101(a)(15), other than an alien physician, who is subject to the two-year foreign residence requirement of INA ' 212(e), 8 USC ' 1182(e), and who has not received a waiver thereof.

 

a. An exception to this preclusion exists where the alien applies for change of status pursuant to subparagraph (A) (diplomat) or (G) (interna­tional organization representative) of INA ' 101(a)(15), 8 USC ' 1101(a)(15). [15]

 


b. Although a Canadian citizen J nonimmi­grant subject to the two-year foreign resi­dence require­ment may not change her or her status to TN classifi­cation, he or she may leave the U.S. and re-enter in TN status.  However, the bar to change of status remains in place so long as he or she has not received a waiver. [16]  

 

c. An automatic waiver of the two-year foreign residence require­ment was granted to certain nationals of the People's Republic of China under specified conditions. [17]  

 

5. An alien admitted as a nonimmigrant without a visa under the Visa Waiver Pilot Program ("VWPP") pursuant to INA ' 217, 8 USC ' 1187. [18] .  The VWPP is currently available to citizens of the follow­ing countries:  Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxem­bourg, Monaco, Netherlands, New Zealand, Norway, San Marino, Spain, Sweden, Switzerland and the United Kingdom.  Congress has granted to the Secretary of State and the Attorney General the authority to expand this list to include other countries who meet specified conditions.  The VWPP was recently extended until Septemb­er 30, 1997. [19]   The VWPP is discussed in greater detail in another article in this Handbook.

 

6. The alien is a citizen of a country listed in 8 CFR ' 212.1(e)(3) who is admitted to Guam as a nonimmi­grant visitor pursuant to INA ' 212(l) and 8 CFR ' 212.1(e). [20]

 

B.        INA ' 2388 precludes change of status for an alien in immediate and continu­ous transit through the U.S. without a visa. [21]

 


C.        Although not a matter of statutory ineligi­bility, the State Department has informed the INS that it considers a change of status from F-1 to J-1 merely to enable the principal alien's spouse to work a misuse of the exchange visitor program.  Such an application will be denied unless the change of status will make the alien subject to the foreign residence requirement of INA ' 212(e), 8 USC ' 1182(e). [22]

 

Practice Pointer:  An alien who is ineligible for change of status (although eligible for the particular nonimmigrant classif­ication) by virtue of any of these statutory preclusions would have to apply at a U.S. consulate for a nonimmigrant visa and then apply to re-enter the U.S.  

 

 

V.            SPECIAL CATEGORIES AND CONSIDERATIONS

 

A.           Students

 

1. A nonimmigrant alien applying for a change of student status pursuant to INA ' 101(a)(15)(F) or ' 101(a)(15)(M), 8 USC ' 1101(a)(15)(F) or ' 1101(a)(15)(M) is not ineligible for this classification solely because the alien may have started classes prior to submitting the applica­tion. [23]   While the INS will not deny an application simply for this reason, the application may be scrutinized more closely to determine whether the alien entered the United States with a preconceived intent to change status.  See Section VI.B. below.

 

2. A related issue with respect to the intending student arises when the alien desires entry into the United States, but has not yet selected a school.  In this situation, the consul may issue a visitor's visa and note on the visa that the applicant is a "prospec­tive student." [24]   This obviates the issue of preconceived intent when the application for a change of status is later filed in the United States. [25]

 

3. The INS will review an application for change of status to student classifica­tion to determine whether the applicant has adequate financial resources to engage in the course of study. [26]   Thus, evidence of financial ability must be submitted with the application.

 


4. An application for change of status to vocational student classification under INA ' 101(a)(15)(M), 8 USC ' 1101(a)(15)(M), will not be granted if the INS determines that the applicant intends to pursue the vocational study solely to later qualify for temporary worker status under INA ' 101(a)(15)(H), 8 USC ' 1101(a)(15)(H). [27]   A change of status application from vocational to academic student will not be granted. [28]

 

5. Similarly, the INS will deny an application for change of status from M-1 student classification to that of an alien temporary worker under INA ' 101(a)(15)(H), 8 USC 1101(a)(15)(H), if the education or training which the applicant received while in M-1 status enables the applicant to meet the qualifica­tions for classification under INA ' 101(a)(15)(H), 8 USC 1101(a)(15)(H). [29]

 

Practice Pointer:  At 8 CFR ' 214.2(f)(5)(I), duration of status (abbreviated as D/S on I-94 and I-20 forms) for F-1 students is defined to include "pursuing a full course of study ... or engaging in authorized practical training, plus sixty days to prepare for departure."  Thus, an F-1 student is eligible to apply for a change of status before or during the sixty days following completion of studies or practical training.  Similarly, at 8 CFR ' 214.2(j)(1)(ii) J-1 exchange visitors are admitted for "the period specified on Form IAP-66, plus a period of 30 days for the purpose of travel."

 

B. NATO Aliens

 

An application for change of status pursuant to INA ' 101(a)(15)(N), 8 USC ' 1101(a)(15)(N), (NATO alien) will be approved notwithstanding the fact that the alien may be an intending immigrant. [30]   The status may be granted for up to three years and employment authorization may be granted incident to status.

 

C.            Witnesses and Informants

 

1. State and federal law enforcement agencies, including federal courts or a U.S. Attorney, may request change of status for an alien to S (wit­ness/informant) pursuant to INA ' 101(a)(15)(S), 8 USC ' 1101(a)(15)(S). [31]

 

2. The alien must be in lawful nonimmigrant stat­us and must not be in an ineligible category under 8 CFR ' 248.2.


3. An application made on Form I-539 with fee and Form I-854 (Inter-Agency Alien Witness and Informant Record) with attachments establishing eligibility is filed with the Assistant Attorney General, Criminal Division, who forwards the request to the INS Commissioner.

 

4. No appeal is allowed from a decision to deny the request.

 

D. Temporary Workers

 

1. When temporary workers in H or L status have reached certain time limits in the U.S., they are precluded from changing their status to another H or L category. 

 

2. These time limits are as follows:

 

a. H-1A registered nurse -- five years, or in certain extraordinary circum­stances, six years. [32]

 

b. H-1B specialty worker or fashion model -- six years. [33]

 

c. H-1B worker involved in a Department of Development (ADOD@) research and develop­ment project -- ten years (but limited to a change of status to perform services involving a DOD research and development project). [34]

 

d. H-2B temporary worker - three years. [35]

 

e. H-3 alien participant in a special education program  -- 18 months. [36]

 

f. H-3 trainee -- 24 months. [37]

 


g. L-1 specialized knowledge alien -- five years. [38]

 

h. L-1 manager or executive -- seven years. [39]

 

3. These time limits do not apply where the temporary workers did not reside con­tinu­ally in the U.S., where their employ­ment was seasonal or intermittent or for an aggregate of six months or less per year, or where they reside abroad and regularly commute to engage in part-time employment. [40]

 

4. The INS has clarified that nothing prevents L-2 dependents from changing nonimmi­grant classification after the principal L-1 temporary work­er's ti­me limit has expired and he or she departs the U.S. [41]   This same reasoning should apply to H-4 dependents where the principal H temporary work­er's ti­me limit has expired.

 

5. Under the Canadian Free Trade Agreement, a Canadian citizen in the U.S. as an H-1 or L-1 temporary worker who had reached the limit of extensions might change to TN classification if his or her occupation was in Schedule 2 to Annex 1502.1. [42]    This is probably still the case for Canadian and Mexican professionals listed under Appendix 1603.D.1 under the North American Free Trade Agreement. 

 

VI.           STRATEGIC CONCERNS

 

A. Statutory Eligibility and the INS Examiner's Discretion

 

1. The approval of an application for a change of nonimmigrant status is a matter of discretion. [43]  

 


2. The alien bears the burden of proving eligibility for the change of status.  The application must address all issues of statutory eligibility.  The lawyer must pinpoint potential grounds of ineligibility and advise the alien of alternative strategies.  In view of the discretion that is allowed, the lawyer should attempt to learn as much as possible about the client.  As an example, the mere fact that an alien had a misdemea­nor arrest in the U.S., but no conviction, might militate against approval of the application.

 

B. Preconceived Intent

 

1. The application for change of status must not be an attempt by the alien to circumvent the normal visa issuing process abroad. [44]

 

2. An area of particular concern to the INS involves an application for change of status from visitor to student.  In some consulates, it may be easier to receive a B-2 tourist visa than an F-1 student visa.  Therefore, the INS examines each application closely to determine not only eligibility, but also whether the applicant had a preconceived intent to circumvent the visa process (e.g., by entering as a visitor and shortly thereafter applying for a change to student status). [45]  

 

Practice Pointer:  Attorneys who are requested to submit an application to change status for an alien from B-2 visitor to F-1 student should advise the alien about the probability of a denial.  The attorney should carefully investigate whether the student had a preconceived intent to change status after arrival.  In situations where plans have changed, it is useful to submit an affidavit from the applicant explaining the change.  The affidavit should also address all other eligibility criteria such as financial ability and ties to home country.  Issues such as the date when the applicant first contacted the school as well as dates when preliminary entrance tests were taken should also be reviewed.

 

3. The alien=s conduct between entry and application for change of status is relevant to the issue of Apreconceived intent.@  The INS will look to a rapid sequence of events and the nature of the decisions reflected in the alien=s activities as factors to determine this issue. [46]


C.           Abandonment of Nonimmigrant Intent

 

1. The INS will consider whether the applicant=s intent in seeking the change of status involves an abandonment of nonimmigrant intent.  Thus, in assessing the applicant's intent, the INS will determine whether the application is merely an attempt to prolong the alien's stay in the United States. [47]   Here, as discussed above, it is helpful to prove that ties exist, specifically when the applicant requests a change from visitor (B-2) to student (F-1 or M-1) status.  All nonimmigrant­s, except those discussed in the following paragraphs, are subject to the legal pre­sumption that they are intending immigrants. [48]

 

2. The fact that an applicant for change to H-1 or L nonimmigrant status is the beneficiary of a petition for a preference status, or has otherwise sought permanent residence in the U.S., does not constitute an intent to abandon foreign residence. [49]   This section was intended to codify the concept of dual intent.

 

Caution:  Although the language of ' 214(h) seems to recognize dual intent only for aliens who have changed to H-1 or L status before their most recent departure from the U.S., the INS has not adopted this restrictive approach. [50]

 

3. The INS applies the concept of dual intent to persons in E [51] , O [52] and P [53] status.

 

4. Change of nonimmigrant classification to subpara­graph (N) of INA ' 101(a)(1­5), 8 USC ' 1101(a)(15),  (relating to parents of  special immigrants who are or were classified as G diplomats or their dependents) shall not be denied on the grounds that the nonimmigrant is an intending immigrant. [54]


 

D. Employment Prior to Adjudication

 

At least insofar as employment is concerned, the INS takes the position that an applicant for change of status may not continue in his or her prior status and may not assu­me his or her new status until the change of status application is approved.  This situation frequently arises when an F-1 student working with employment authorization through practical training applies for a change of status to H-1B specialty worker through the same employer.  After the employment authorization under practical training expires, the applicant is not employment authorized until the change of status to H-1B temporary worker is approved.

 

However, in Salehpour v. INS [55]   the Ninth Circuit found that continued employment with the same employer after expiration of F-1 practical training status, but before approval of the petition for H-1 classification and for change of status to H-1B specialty worker did not constitute unauthorized employment prohibiting approval of a later filed application for adjustment to permanent resident status.  The logic of the Salehpour case mandates that if employment is not unauthorized for one purpose, it would not be unauthorized for another.  The INS has refused to follow Salehpour, and an alien who is authorized to work in one status loses that authori­zation when the status expires, even if an application for change of nonimmigrant status is pending. [56]  

 

Salehpour was decided before sanctions for unauthorized employment were imposed in 1986. [57]   The issue is discussed in an INS Central Office memorandum which essentially states that the employer sanctions provisions of INA ' 274A, 8 USC ' 1324a, set forth with specificity the types of documents which must be produced to an employer to verify an em­ployee's authorization to work in the United States.  Thus, generally, where employment authorization is incident to a status maintained while employed in the United States (e.g., F-1 or M-1 practical training status) and that status expires, until the INS approves extension of status or change of status to another nonimmigrant class which authorizes employment, the alien is no longer authorized to work.  Therefore, according to the INS, at the point in time where the prior status expires, the employer who continues to employ the alien violates the INA's employer sanctions provisions. [58]

             

Note, however:  By virtue of 8 CFR ' 274a.12(b)(20) a nonimmigrant in A-3, E, G-5, H, I, J, L, O, P, R, or TN status who filed an application for extension of stay before his or her status expired is authorized to continue employment with the same employer for up to 240 days or until an earlier decision denying the application.

 

 

VII.            APPLICATION PROCEDURE

 

The application for change of nonimmigrant status is requested by using either Form I-129 or I-539.  Note that old Form I-506 is no longer accepted.  The I-129 is used when the alien wishes to change to E, H, I, L, O, P, R or TN status; the I-539 when changing to any other status.  The application should be filed with the appropriate INS Service Center.  The application must be submitted with the required fee, a photocopy of the applicant's I-94 arrival-departure record, and documenta­tion to prove eligibility for the nonimmigrant classification sought.  Additional evidence that the applicant has been maintaining nonimmigrant status may be requested by the INS. [59]

 

A. Application and Fee Not Required

 

Applicants wishing to change to A (diplomat) or G (representative of international organization) status, including a request by an immediate family member of a principal alien whose status has already been changed to A or G classification need not submit an application or pay a fee.  The State Department must approve this change of status. [60]

 

B. Classification Change Not Required

 

1. A nonimmigrant visitor for business (B-1) who intends to remain in the United States temporarily as a visitor for pleasure (B-2) during his or her period of authorized admission need not submit a request for change of status. [61]

 


2. An immediate family member of an (A) or (G) alien and the spouse or child of an alien classified pursuant to INA ' 101 (a)(15)(E), (F), (H), (I), (J), (L), (M), (O), (P), (R), 8 USC ' 1101(a)(15)(E), (F), (H), (J), (L), (M), (O), (P), (R), or as a TN are not required to submit an application for change of status to attend school in the United States, as long as the principal alien continues to maintain the prescribed non­immigrant visa status and the immediate family member, spouse, or child continues to maintain the cor­responding, non­immigrant visa status. [62]

 

 

VIII. DECISION AND TRAVEL ISSUES

 

 

A. Approval

 

1. If the application for change of status is ap­proved, Form I-797 is issued.  This form is printed on safety paper which includes a tear-off I-94 indicating the alien's status in the U.S.

 

2. If the spouse or child of an alien whose status has been changed to E, F, H, I, J, L, M, O, P, R or TN classification is abroad and will follow to join the principal alien, the spouse or child presents the principal's approval notice (INS Form I-797) to the U.S. consular post abroad to apply for a visa or to the U.S. port of entry to apply for entry.  Of course, the spouse or child must also present proof of the family re­lationship.  With a $30 filing fee, Form I-824 Application for Action on an Approved Petition may be filed with the INS Service Center that approved the petition in order for INS to cable notice of approval to the appropriate U.S. consular post or port of entry.  Note:  The consular post or port of entry listed on Form I-129 is automatically notified.  It is only necessary to file Form I-824 if an additional or different consulate is to be notified.

 

3. Once the application for change of nonimmigrant status has been granted, the alien is required to comply with all of the terms and conditions of the new visa status. [63]

 

B. Travel After Approval of Change of Status

 

A nonimmigrant whose status has been changed will generally need a visa issued by a U.S. consulate abroad to return to the United States after a trip abroad.  There are two exceptions.

 

1.           The 30-Day Rule (Automatic Visa Revalidation)

 


An alien with an approved change of status to F or J status is allowed to travel for thirty days or less to Canada, Mexico, or the adjacent islands (other than Cuba) and to reapply for admission to the U.S. in the same nonimmigrant status without a valid nonimmigrant visa.  Instead, Forms I-94 and I‑20 or IAP-66 are presented at the port of entry. [64]    The same applies to aliens who have changed status to any other nonimmigrant classifi­cation, except that re-entry is permitted only from a contiguous territory. [65]   This ability to enter the United States with an expired visa is useful for an applicant who travels to Mexico or Canada to apply for a nonimmi­grant visa.  If the nonimmigrant visa is denied, the applicant can still return to the United States under the automatic revalidation rule.  If the same applicant had applied at a U.S. consulate at another foreign post, the applicant would not be able to return to the United States if the visa application had been denied.

 

2. Except where classified as E-1 or E-2 nonimmigrant­s, Canadi­an citizens [66] use Form I-797 or Form I-94 (these are not surrendered upon departure) to apply for admission to the U.S. because no visa (or passport) is re­quired.  Proof of status as a Canadian citizen (or landed immigrant) is required. [67]    Where Canadian citizens have received change of status to E-1 or E‑2 classification, the INS must notify them of the visa requirement for re-entry. [68]

 

C. Denial<