By Maud Poudat | US Board Certified Immigration Attorney
Posted: June 27, 2020
During your stay in the United States on a B-1 or B-2 visa (i.e., as a visitor for business, tourism, medical treatment, etc.), your plans may change after you arrive. You may be able to extend your stay in the U.S., or even work or study in the U.S. on a temporary basis.
If this is the case, you can apply to extend or modify your legal stay.
To extend your B status, you must file Form I-539, called the Application to Extend/Change Nonimmigrant Status, with U.S. Citizenship and Immigration Services. Form I-129 may also be used for changes to your status related to employment but is not the subject at hand.
Review and decision- making authority is by USCIS, an agency under the Department of Homeland Security. You must provide specific evidence of your initial intent to stay in the United States and specific evidence of your bona fide reasons for wishing to stay longer.
You must also show that you entered the United States for the sole purpose of business, tourism, or medical treatment, although your plans may have since changed.
Below is information on how to submit an extension or change to your B-1 or B-2 non-immigrant classification to USCIS.
We will also share some practical advice regarding meeting the deadlines and conditions of your visitor visa while waiting for USCIS’ decision.
Ideally, you should apply as soon as you learn that your situation has changed, though applying too soon could result in a finding of preconceived intent, meaning you already planned to stay at the time of your admission.
USCIS recommends that you file your application at least 45 days before the expiration of your authorized stay. (The expiration date is indicated on your I-94 form, which you can download from the U.S. Customs and Border Protection (CBP) website.)
However, this is not possible in all cases, especially if the reason for staying in the U.S. longer than expected arises at the last minute.
Your application for extension must be filed before your I-94 card expires. The timely filing of your extension allows you to remain while you wait for a decision.
You are out of status once your I-94 card has expired. To successfully change your status or extend your stay at this point, you must show that extraordinary circumstances beyond your control caused you to delay filing your application, and that the time elapsed since then is reasonable given the circumstances.
What qualifies as an "Extraordinary circumstance" is best determined by a competent immigration attorney. Policies and adjudication trends are constantly evolving.
If you cannot give USCIS a solid reason why your status was allowed to expire, it is not possible to change or extend your B visa classification, and you should consult with an immigration attorney to assess whether it is in your best interest to leave the United States immediately and then apply for the visa you need from your home country.
Be aware that if you stay in the United States for 180 days or more after your B visa status expires, you will be at risk of not being able to apply for immigration benefits for many years. There are 3 and 10 year bars once you leave depending on the amount of time you overstayed.
To extend your stay or change your status, you must provide USCIS with the same information you provided on your initial application for a B-1 or B-2 visa. This includes proof that you can support yourself financially while in the United States and a written statement explaining the reasons for your request for an extension.
You should also provide detailed information to confirm that you still intend to return to your home country and that you have ongoing economic and social ties there. In addition, you must demonstrate your financial ability to continue to reside in the United States for this extended period.
Here are some examples of the types of evidence USCIS may ask you to produce:
In addition, under new regulations restricting entry to the United States to non-citizens who may receive public benefits or needs-based assistance, you will be required to itemize all benefits of the same type that you have already received in the United States since February 24, 2020. Receipt of public benefits may result in the denial of your application.
For more details, see the instructions for Form I-539.
To change your status, you cannot simply submit form I-539 or I-129 and wait for your application to be approved. You must also meet all eligibility requirements for the new visa and send the appropriate documents to USCIS.
You must submit Form I-539 and the other required initial evidence together so that USCIS does not deny your case.
If you are completing Form I-539 to change to the F or M classification on a non-immigrant visa, do not enroll in schools or universities or accept employment until USCIS approves your application for a change in status.
However, if you are applying to change your status from B1/B2 to F-1, you must maintain your B1/B2 status while waiting for a decision on Form I-539, which can be very lengthy. The person will have to make several requests for extension of B1/B2 (also on I-539) before the decision on Form I-539 for the COS from B1/B2 to F1 is issued. In particular, it must be proven that the start of the course begins within 30 days of the expiration of the B1/B2 status.
If USCIS finds out that you are already enrolled in a school, you will not be able to change your B-1 or B-2 visitor status. The same caveat applies to various work-related visas. Be careful not to accept unauthorized employment while in the United States with B status!
If it is an application for extension or change of status that does not require sponsorship by an employer or qualification as an employee, all family members are included on Form I-539 (+I-539A for each family member). Otherwise, the applicant will use Form I-129 combined with Forms I-539/I-539A.
If you filed I-539 or I-129 to extend or change your status and the date of your authorized stay on your I-94 arrival/departure form has passed, USCIS will generally defer any removal proceedings (Deportation) until a decision has been made on your application.
You will not accrue unlawful presence while your application is in process if the application is filed before the expiration of your I-94. However, if you receive notice that your I-539 application has been denied, your nonimmigrant visa in your passport will no longer be valid and you will need to leave the United States immediately as you would be accruing unlawful presence.
The advice in this article is for people who have actually obtained a visa to travel to the United States. If you traveled to the United States under the Visa Waiver Program (VWP), you are not traveling on a visa, so you cannot extend or change your status in the United States. In addition, you do not have the right to see an immigration judge if your case is denied.
The only way to be able to remain longer is if you obtain Satisfactory departure in the case of an extreme emergency. If an emergency occurs and you need to stay in the United States longer than the 90 days allowed, contact the USCIS Customer Service as soon as possible and ask for a delay (the standard is 30 days, but sometimes less) or to your local CBP office.
There may be other limited protections such as asylum to be determined by a competent immigration attorney.
All of these procedures can be deceptively complex. The US Department of Homeland Security has become increasingly unforgiving of any mistakes. In addition, the conditions for acceptance and the criteria have become very restrictive. We strongly advise you to contact an immigration lawyer if you need to extend your stay in the United States.