Change of Nonimmigrant Status Caterina A. Ranieri Bousquet Holstein PLLC Syracuse, NY cranieri@BHlawpllc.com Andrea Godfread-Brown Godfread-Brown LLC Syracuse NY agodfreadbrown@bplaw.us.com

Eligibility to Change Status: 8 CFR § 248.1 Must be lawfully admitted Must Maintain lawful nonimmigrant status Nonimmigrant intent Timely Filing of petition/application Change of status is a discretionary benefit 30/60/90 day rule

Who Cannot Change Status: 8 CFR § 248.2 D, K, Q, S, C, TWOV, ESTA (VWP) J is subject to 2-year home residency requirement under certain situations What if crime committed since last admission, or some other inadmissibility issue has arisen?

30/60/90 Day Rule: DOS expanded definition of “Presumption of Misrepresentation” to 90 days (see 9 FAM 302.9-4) INA 212(a)(6)(C) – fraud or misrepresentation in visa application of admission to U.S. deems alien “inadmissible”. Does not have to be willful misrepresentation. 90 Day Rule (9 FAM 302.9-4) - presumption of willful misrepresentation if alien engages in certain conduct within 90 days of entry. As of 08/01/2017 This had previously been known as the 30-60 day rule Discretionary

Conduct Inconsistent with Non-Immigrant Status such as: Unauthorized employment Enrolling in studies if not in allowed nonimmigrant status (e.g. B status) Marrying a U.S Citizen or LPR Undertaking activity for which a COS or AOS would be required without the benefit being approved Check activities allowed based on the type of visa

Changing to F Status: Visa Holders may change status to F-1 but not FN’s entering on VWP From M- vocational and technical schools – prohibited to change to F-1 status From B- Start date on I-20, when bridge necessary, all those issues- however, there seems to be a trend emerging in this area Policy Memorandum (PM-602-1060) Who can study without changing to F status: dependents of A, G, E, H, I, J, L, O, Q-2

USCIS Policy Memo of 5/10/18: PM-602-1060 Accrual of Unlawful Presence (ULP) and F, J, and M Nonimmigrants Effective August 9, 2018 D/S ULP accrues as of: End of studies Day after completing program Day after I-94 expires, or Day after Immigration judge orders them removed

Change Within a Category (i.e. H-1B to H4): This is technically a change of status A petition/application is required Does B-1 to B-2 or vice versa require an application? (n0, 8 CFR 248.3(e))

How to Apply for Change of Status: I-129, I- 539 ( include discussion of dependents) I-129 form: Review of forms Fees Starting and end dates to request Supporting documents Proof of recent employment if beneficiary has been in a work- dependent status Proof of maintenance of status Passport –How long must passport be valid?

I-539 Form: Which Boxes to Check Fees Starting and end dates to request Dependents- correlate with principle

Immigration Status While Change of Status Pending: If previous status has not expired If previous status has expired Likelihood of NTA When does unlawful presence start to accrue? 3 year/ 10 year bar from re-entering United States

Foreign Travel While Change of Status Pending: Abandonment of change of status request I-129 petition can still be adjudicated and approval used for consular processing instead

Foreign Travel After Change of Status Approved: Canadians who do not have a visa- how to get back in to the U.S. ( Consular Process) Canadians may also apply at the U.S. border Must obtain new visa in passport to match new status before re-entry Remember that the I-94 document governs your lawful term of stay in U.S. NOT the visa stamp in passport. Make sure I-94 is accurate. If not, deferred inspection may correct information.

Expiration of Visa: Apply for new visa Visa revalidation if I-94 still good

Alternatives to Change of Status: Consular processing Caution for those with unlawful presence- 3 year to 10 year bar

Resources and Links USCIS Policy Memo on Accrual of ULP for F, J and M Nonimmigrants, found on www.uscis.gov https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/changing-nonimmigrant-f-or-m-student-status USCIS Document on Change of Status Process https://www.uscis.gov/sites/default/files/USCIS/Resources/C2en.pdf

Resources and Links (cont.) 30/60/90 day rule. NAFSA article with FAM references https://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/DOS_Expands_Presumption_of_Misrepresentation_Rule_to_90_Days/ Links to forms: https://www.uscis.gov/forms