During your visit to the U.S. on a B-1 or B-2 visa, your plans may change. Perhaps you will be given the opportunity to stay in the U.S. longer than you initially expected or even a chance to work or study in the U.S. for a temporary period of time.
If this is the case, you will need to file Form I-539, Application to Extend/Change Nonimmigrant Status with U.S. Citizenship and Immigration Services (USCIS). Whether or not USCIS approves your application is completely within its discretion, so you should make sure to provide plenty of evidence to show that you intended to remain in the U.S. for only the authorized period of time and that you entered as a tourist for business, pleasure, or medical treatment, even if your plans have now changed.
Here you will find information how to submit an extension or change of B-1 or B-2 nonimmigrant classification with USCIS as well as practical advice on timing and remaining compliant with the terms of your visitor visa while you wait for a decision.
You should file your request as soon as you learn you might need to change your nonimmigrant classification or stay in the U.S. for a longer period of time. USCIS recommends that you file your request at least 60 days before your permitted stay expires -- as shown on your Form I-94, which you will need to download from the U.S. Customs and Border Protection (CBP) website. In many cases, this will be impossible, as the reason why you need to stay in the U.S. for longer than expected might have arisen at the last moment.
If you file after your B-1 or B-2 status has expired, you are now considered “out of status.” In order to successfully change your status or extend your stay, you must show that there were extraordinary circumstances beyond your control that caused you to delay filing your request and that the time elapsed was reasonable given the circumstances. Good examples of “extraordinary circumstances” are medical emergencies, loss or theft of your passport or other travel documents, or if you can show that you attempted to file your request and it was returned because it was unknowingly “defective” due to missing information, filing fee, or other documents.
If you cannot provide USCIS with a convincing reason for why you fell out of status, you will unable to change or extend your B visa classification and should consult with an immigration attorney who can advise you whether or not it is in your best interest to immediately depart the U.S. and apply for the visa that you need from your home country. Be aware that if you remain in the U.S. for 180 days or more after your B status expires, you may be barred from applying for future immigration benefits for many years. For more on this, see “Consequences of Unlawful Presence in the U.S. – Three- and Ten-Year Time Bars.”
To extend your stay or change your status, you will need to show much of the same evidence that you did when you initially applied for your B-1 or B-2 visa. This includes evidence that you can support yourself financially during your time in the U.S. and a written statement explaining the reasons for the extension request. Be sure to provide details to show that you intend to return to your home country, that you still have economic and social ties abroad, and that you have enough money to remain in the U.S. for this longer period of time.
Some examples of the types of evidence that USCIS wants to see are:
To learn more about the types of evidence USCIS is looking for, read Nolo’s article “Application Process for a B-1 or B-2 Visitor Visa.”
To change your status, you cannot simply submit Form I-539 and wait for your application to be approved. You must also meet all of the eligibility requirements for the new visa and submit the appropriate petition to USCIS.
For example, if you are changing to change to F-1 (academic student) or M-1 (vocational student) status, you must be accepted into a full-time program by a U.S. school and meet other requirements such as having a “prospective student” endorsement noted on your visa. For more information on this, see “Application Process for an F-1 or M-1 Student Visa: Changing Status if Already in the U.S.”
If you hope to work in the U.S. temporarily, a visa for that purpose must be available (there can be long waits depending on your level of education and expertise) and your employer must comply with all necessary procedures, such as labor certification.
The necessary forms, fees, and evidence you should provide depend on the type of visa for which you are applying. For a comprehensive list, see the Forms page of the USCIS website. Ideally, you will submit Form I-539 and the other necessary forms together so that USCIS can give you a decision around the same time.
There is a difference between “changing status” and asking for protection from the U.S. government. Most people who change their status from a B visitor do so after getting the opportunity to work or study in the United States. If you hope to avail yourself of the protections of the U.S. government because of emergency conditions in your home country or because you fear persecution based on a protected ground, you can apply for Temporary Protected Status (TPS) or asylum. You do not need to file Form I-539 along with your petition for humanitarian and protective remedies such as TPS or asylum.
If you are filing Form I-539 to change to F or M nonimmigrant visa classification, be aware that you cannot enroll in classes until your status change request has been approved by USCIS. If USCIS discovers that you have already enrolled in school, you will be found ineligible to change your status from a B-1 or B-2 visitor. The same caution applies to various work-related visas. Make sure not to accept unauthorized employment while in the U.S. in B status!
If you have filed Form I-539 to extend your visa or change your status and the date of your authorized stay on your I-94 Arrival/Departure record has passed, don’t panic, as USCIS cannot place you in removal proceedings until your application has been decided. In addition, you will not accrue unlawful presence while your application is pending. However, if you receive notice that your I-539 application has been denied, even if you the date on your I-94 has not yet passed, your B visa will become void and you will be required to depart the U.S. immediately.
The advice in this article is for people who actually obtained a visa in order to visit the United States. If you traveled to the U.S. using the Visa Waiver Program (VWP), you are not traveling on a visa, so you won’t be able to change your status within the United States. In addition, you can’t extend your stay except in an emergency situation. If an emergency does occur and you need to stay in the U.S. longer than the 90 days authorized, you should schedule an InfoPass appointment with USCIS to grant a period of satisfactory departure of 30 days or less. You may be eligible for other protections such as asylum or Temporary Protected Status if you qualify.