1. Change of Nonimmigrant Status
Caterina A. Ranieri
Bousquet Holstein PLLC
Syracuse, NY
Andrea Godfread-Brown
Godfread-Brown LLC
Syracuse NY

2. 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

3. 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?

4. 30/60/90 Day Rule:
DOS expanded definition of “Presumption of Misrepresentation” to 90 days (see 9 FAM )
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 ) - 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 day rule
Discretionary

5. 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

6. 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 )
Who can study without changing to F status: dependents of A, G, E, H, I, J, L, O, Q-2

7. USCIS Policy Memo of 5/10/18:PM
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

8. 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))

9. 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?

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

11. 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

12. 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

13. 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.

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

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

16. Resources and Links
USCIS Policy Memo on Accrual of ULP for F, J and M Nonimmigrants, found on
USCIS Document on Change of Status Process

17. Resources and Links (cont.)
30/60/90 day rule. NAFSA article with FAM references
Links to forms: