If you are in the United States on a nonimmigrant (temporary) visa, and need to extend your time on that visa or switch to another (also temporary) visa, the procedure you will use is to prepare and submit Form I-539, issued by U.S. Citizenship and Immigration Services (USCIS).
Realize, however, that extensions or changes of status are in no way granted automatically. You’ll need to:
- submit your application by the appropriate time
- make sure you’re eligible for the extension or change of status, and
- fill out the form completely and without mistakes, and attach the appropriate documents.
We’ll cover all of those here.
Submitting Your I-539 Application on Time
You must submit your application for and extension or change of status before, not after, your old status runs out. This is most likely shown on the I-94 card that was placed in your passport when you entered the United States. Do NOT go by the date that your visa expires – that is just the last day you could use that visa for U.S. entry, not the date up to which you can stay in the United States.
If you miss the expiration date and can prove that it was not your fault, you can apply late. But you will need to provide documents showing USCIS that you would have met the date, but for circumstances beyond your control; that the length of the delay was reasonable; that you haven’t violated the terms of your visa status in any other way; and that you aren’t just looking for a way to stay in the United States permanently.
Checking Your Eligibility for the Extension or Change of Status
Many visas allow at least one extension, depending on your reasons for needing it, and on your being able to prove your continued “nonimmigrant intent” – that is, that you still plan to leave the U.S. on your designated departure date, not to try to live here permanently. And, provided you have maintained valid visa status, chances are good you’re allowed to apply for a different status.
But don’t assume anything until you’ve researched the terms of your own visa. Many rules are visa specific—for example, someone on a B-2 tourist visa cannot change to student status unless he or she got a specific notation on the visa ahead of time. To find out more about the terms of your visa, including renewal possibilities, see “Temporary (Nonimmigrant) Visas.”
Preparing the Form I-539 Application
Form I-539 is used by a variety of applicants for a variety of requests, so you’ll need to read the instructions and questions carefully to narrow in on the requirements that apply to you.
A few questions on the form require extra attention, as follows:
Part I, questions on “current immigrant status” and “expires on.” You should be able to find this information on your I-94. For example, if you entered as a vocational student, your “status” would be “M-1.” The I-94 will also show a date in most cases; though it may say “D/S” for duration of status if you’re a student. That simply means that you can stay until your studies are completed. But if you’re no longer studying, then you are out of status and expected to leave the United States.
Part II. This should be self-explanatory, but make sure to mention your family members if they received visas to accompany you to the United States (for example, if you received an F-1 visa and they received F-2s). They too can receive extensions through your filing of this form. You won’t need to file separate forms on their behalf.
Part III: Do your research ahead of time and make sure you’re not asking for more time than will be allowed on your visa extension or new visa. Your request must also be realistic given your needs in the U.S.—and you’ll have to back it up with documentation of why you need to stay longer or receive a different visa.
Part 4: If your passport will expire while you are in the U.S. after being granted the extension or change of status, you will need to renew it. The passport must remain valid for at least six months beyond your departure date. And it’s important to be able to enter a foreign address here, so that USCIS doesn’t think you have pulled up roots and are attempting to live permanently in the United States (a violation of the required “nonimmigrant intent”).
In Part 4, Question 3, you should be able to answer “No” to all the questions. If you answer “Yes” to any, you are most likely inadmissible, and will not receive a visa. The exception is that certain visa categories allow dual intent for people seeking labor-based visas, including the H-1B, L, and O-1 visas. Consult a lawyer for any other situation where your answer is yes. If you are in the U.S. on a J-1 visa, you should also consult a lawyer, as your rights to change your status are complex and limited.
If including family members in your application, be sure to fill out the Supplement to the form.
Preparing Materials to Accompany Form I-539.
Again, you’ll need to pay careful attention to the instructions. In most cases, you’ll need to supply:
- a copy of your I-94 (Include separate I-94s for everyone included in your Form I-539.)
- full English translations of every document submitted in another language
- the appropriate fee ($290 for most applicants in late 2012, with certain applicants also required to pay the $85 biometrics fee)
- for dependents (spouses or children), birth or marriage certificates proving the relationship to the main visa holder or applicant
- documents showing your need for the extension of change in status, such as a letter of explanation from people on a B-2 or B-2 visitor visa, or a Form I-129 signed by the petitioning employer for people applying for a labor-based visa.
Mail your application to the address shown in the instructions. If you have any questions about your eligibility, or how to fill out the form and prepare the application, consult an immigration attorney.