If you are in the U.S. as a temporary visitor (on what’s known as a “nonimmigrant visa,” for example a B-2 tourist or F-1 student), you are normally expected to leave by the date shown on your Form I-94. (Before April 2013, all U.S. visitors received a white card in their passports at the U.S. border, airport, or other point of entry. Now this form is automated for most visiting nonimmigrants and can be accessed online.)
But what if that date is approaching and you’d like to stay longer? You may be able to apply for an extension, as described here. If you’re not in a visa category that requires direct sponsorship by an employer, the form to use for this is the I-539 Application to Extend/Change Nonimmigrant Status, available as a free download from U.S. Citizenship and Immigration Services (USCIS).
Are You Eligible for an Extension at All
U.S. immigration law contains strict rules about how long people on particular types of visas can stay after their initial entry to the U.S., how much more time they may be granted under an extension, and the maximum amount of time they may spend in the U.S. in total. You will need to figure out what rule applies to your particular visa. See the article, “How Long Will Your U.S. Visa Allow You to Stay?” for a summary of what’s possible under your visa.
You will also need to be sure that you have not violated the terms of your visa, most often a problem when someone works illegally, commits a crime, or simply lets the I-94 expire without first applying for an extension or leaving the United States. Violations such as these automatically cancel one’s visa.
Which Categories of Nonimmigrant Visa Need to Use Form I-539
Here are the types of visa holders who can (and must) use USCIS Form I-539 to request an extension of stay:
- A (ambassadors, public ministers, career diplomatic or consular officers) and their immediate family members
- A-3 (attendants, servants, and personal employees of A visa holders) and their own immediate family members
- B-1 (visitors for business)
- B-2 (visitors for pleasure)
- CW-1 (transitional workers’) dependents
- E (treaty traders and investors’) dependents
- Australian specialty occupation workers’ dependents
- F (academic students admitted to study for a limited time at a public secondary school only) and their dependents
- G (designated principal resident representatives of a foreign government) and their immediate family members
- G-5 (attendants, servants, and personal employees of foreign government officials) and their immediate family members
- H (temporary workers’) dependents
- K-3 (fiances of U.S. citizen) and minor children
- K-4 (spouse of U.S. citizen and minor children
- L (intracompany transferees’) dependents
- M (vocational students) and their dependents
- N (parents and children of certain special immigrants)
- NATO-7 – Attendants, Servants, Personal Employees of NATO Representatives, Officials, Employees and Immediate Family Members
- O (aliens with extraordinary ability) dependents
- P (athletes’ and entertainers’) dependents
- R (religious worker) dependents
- TD dependents of TN visa holders
Line-by-Line Instructions for Filling Out Form I-539
Let’s make sure that you’re clear on how to fill out the various questions on Form I-539. Some are self-explanatory, but others can be tricky, and it’s important to be accurate and avoid inconsistencies.
Part 1. Information About You: Much of this part is self-explanatory.
You probably won’t have a U.S. Social Security number unless your visa or status allowed you to work. If you don’t have a number, enter “None.” If you used someone else’s Social Security number or worked in the United States without authorization, consult a lawyer.
You will have an A-number (an eight- or nine-digit number following the letter “A” for Alien) only if you were placed in deportation or removal proceedings in immigration court or submitted any of certain types of immigration applications, particularly for permanent residence (a green card). If you were in such proceedings or had any immigration applications denied, definitely see a lawyer.
Your I-94 number is either on the small white card that you received at the border or accessible at the Customs & Border Patrol website. If the date Form I-94 has passed, you are no longer in status and cannot file this application. An exception may be made in your case if you are within one week of the expiration date, but try to avoid relying on this. If your I-94 card is green, stop now. It means you entered on the Visa Waiver Program and are not allowed to apply for a change or extension of status.
For “Current nonimmigrant status,” enter your visa status, such as “F-1 student” or “G-2, family member of foreign government representative.” The date your status “Expires on” is found on your I-94 as well.
Part 2. Application Type:
Question 1 is important, as many types of applicants use this form, and you will need to check the box indicating which one you are. We’re assuming that you are applying for an extension, and will check box 1a.
Question 2: This is where you have an opportunity to include any spouse and children in your application. Check box 2b, and then write in the total number of them plus you. (For example, a husband wanting to include his wife and child would enter “3.”) Also be sure to fill out the Form I-539 Supplement-1 page, where you will list their names and other information.
Part 3. Processing Information:
Question 1: Enter the date you’d like to leave, and make sure it’s within the maximum allowed for your type of visa, by checking “How Long Will Your U.S. Visa Allow You to Stay?” for a summary of what’s possible under your visa.
Question 2 to 4: If you are the primary applicant, your answer to these questions is “no.”
Part 4. Additional Information:
Questions 1 and 2: Self-explanatory. Check when your passport expires, however. If the date is within the period of extension that you’re asking for, you should have it renewed. You can usually do this at a consulate of your home country in the United States. Your passport must remain valid for at least six months beyond your date of departure from the United States.
Question 3: These questions are designed to see whether you are inadmissible to the United States, as described in “Inadmissibility and Waivers.” Think carefully before entering your answers, and keep reading for details. If no good solution is provided below, you will need to consult an experienced immigration lawyer.
Question 3a: If you or any members of your family included in your application have applied for an “immigrant visa,” it indicates that you are seeking to stay in the U.S. permanently and get a green card. USCIS will probably conclude that you have no intention of returning home after your visit and will deny this extension application accordingly. There is no a solution for this -- and hiding your other application is impossible.
Question 3b: This is similar to the question above except that instead of referring to an application that you filed yourself, it asks whether someone else has filed a petition to start the process of your acquiring a U.S. green card. For example, some petitions filed by family members will place you on a waiting list that will last many years before you yourself can take an active role in applying for an immigrant visa. Nevertheless, USCIS may deny your extension application if your answer to this question is yes.
Question 3c: See advice for question 3a. Form I-485 is simply the U.S. version of a green card application, used during an application process called “Adjustment of Status.”
Question 3d: If you were simply arrested for a crime and not charged (for example, the police picked up the wrong guy), you are safe entering “yes” here and attaching a written explanation and a copy of the police report. But for anything more serious, or for any of the other activities described in this question (terrorist, genocide, and more), you must consult a lawyer before going any farther. Most criminal convictions will render you inadmissible to the United States. Sometimes, no conviction is even required. For example, USCIS merely has to suspect that you a drug trafficker in order to find you inadmissible.
Question 3e: To determine whether you have violated your current immigration status, consider the type of visa you are on and what you agreed to do to get that visa. For example, if you came to the United States as a student but worked without authorization, this would be a status violation. USCIS will probably deny your extension application.
Question 3f: If you are now in “removal proceedings” (formerly known as exclusion or deportation proceedings), talk to a lawyer immediately—it’s likely that the USCIS has no power over this extension application. Your entire immigration situation is now in the hands of the immigration court.
Question 3g: If you have worked in the U.S., it needs to have been permissible under the visa or status that you held at the time. You may also have been required to obtain an employment authorization card (EAD) from USCIS. If your work wasn’t permitted, talk to a lawyer pronto. If your work was permitted, look at the paragraph below the question to see what additional information you will need to supply (do this on a separate piece of paper and put your name at the top in case it gets separated from the rest of your application). Add a photocopy of both sides of your work permit if you had one.
Part 5. Signature: Self-explanatory.
Part 6. Signature of person preparing form if other than above: This is where a lawyer or legal assistant would sign. If you simply had some typing help, the person does not need to sign.
Documents and Fees for Form I-539
After you’ve filled out the form, you’ll need to come up with supporting documents and a fee, as follows:
- Form I-94; whether to send an original or a photocopy (front and back) depends on your current status; see the USCIS instructions (and send an original only if required to do so)
- I-94s for any family members included in your Form I-539
- full English translations of anyy document submitted in a different language
- fee ($290 for most applicants as of early 2013, with some applicants also required to pay a $85 biometrics (fingerprinting) fee)
- for dependents (spouses or children), birth or marriage certificates proving their relationship to the primary visa holder or applicant
- documents showing your need or eligibility for the extension, such as a letter of explanation if you are on a B-2 or B-2 visitor visa.
When you’re finished, make a complete copy of every item, including the check, for your records and to protect against the very real possibility of loss in the system. Mail your application to the address shown in the USCIS instructions to the form. If you have questions about your eligibility, or how to fill out the form and prepare the application, an experienced immigration attorney can help.