Change of Nonimmigrant Status Caterina A Ranieri Bousquet
Change of Nonimmigrant Status Caterina A. Ranieri Bousquet Holstein PLLC Syracuse, NY cranieri@BHlawpllc. com Andrea 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 1 B to H 4): �This is technically a change of status �A petition/application is required �Does B-1 to B-2 or vice versa require an application? (n 0, 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-unitedstates/students-and-exchange-visitors/students-andemployment/changing-nonimmigrant-f-or-m-student -status �USCIS Document on Change of Status Process https: //www. uscis. gov/sites/default/files/USCIS/Reso urces/C 2 en. 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
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