Individuals with nonimmigrant status can use Form I-539 to petition for an extension of stay or change to another nonimmigrant status. In some situations, you can use Form I-539 to apply for initial nonimmigrant status. 

The processing time for Form I-539 varies depending on which service center handles your petition. Most I-539 petitions are handled in the Vermont Service Center, which typically takes about 12 – 16 months—though it can be as short as 9 months for individuals seeking an extension of stay as a U or T nonimmigrant. I-539 petitions sent to the California Service Center take 1 – 5 months to process, while petitions sent to the Nebraska Service Center take 6 – 8 months. Petitions handled by the National Benefits Center have the best processing times with a turnaround time of as little as one week. For an up-to-date estimate, see the USCIS Case Processing Times web page.

USCIS determines which service center will handle your petition based on your unique filing type. Petitions that are submitted to USCIS lockbox locations are forwarded to the nearest service center. Once USCIS receives your petition, they will send you a receipt that indicates which service center is processing your case.

When Should You File Form I-539?

Generally speaking, USCIS recommends filing for an extension or change of status at least 45 days before your visa expires. You can find this expiration date in the lower-right corner of your Arrival-Departure Record (Form I-94). 

After you file, keep a copy of the dated application and any receipt issued by USCIS. If your visa expires while your application is still being processed, you will need these as evidence to prove that you successfully filed the appropriate paperwork on time.

Who is Eligible to Apply for an Extension with Form I-539?

Individuals with nonimmigrant status may be eligible to apply for an extension under the following conditions:

  • You were lawfully admitted into the United States with a nonimmigrant visa
  • Your nonimmigrant visa status is still valid
  • You haven’t committed a crime that would make you ineligible for a visa
  • You haven’t violated the terms of your visa
  • You have a valid passport, and it is valid through the duration of your stay

Assuming you meet these basic requirements, the next step is to check if your visa category is eligible to receive an extension. Generally speaking, the following visa categories may be considered for an extension:

  • A-3 – personal employees, servants, and attendants of diplomatic and other government officials, and their immediate family members
  • B-1 & B-2 – visitors traveling to the United States for business or pleasure
  • E-1 & E-2 – dependents of treaty investors, treaty traders, and their employees
  • E-3 – dependents of skilled professionals from Australia
  • G-5 – personal employees, servants, and attendants of foreign government officials, and their immediate family members
  • H-4 – Dependents of temporary skilled and unskilled workers and trainees
  • K-3 & K-4 – spouses of US citizens and minor children accompanying or following to join
  • L-2 – Dependents of intracompany transferees
  • M – vocational students and their dependents
  • N – parents and children of individuals who have been granted special immigrant status
  • NATO-7 – personal employees, servants, and attendants of NATO representatives, employees, officials, and their immediate family members
  • O-3 – dependents of aliens with extraordinary ability, and their assistants
  • P-4 – dependents of entertainers and athletes
  • R-2 – dependents of religious workers
  • V – certain second-preference beneficiaries
  • TD – dependents of Mexicans and Canadians under NAFTA

Which Categories are Prohibited from Applying for an Extension?

Not all nonimmigrants are eligible to apply for an extension. Under US immigration law, the following visa categories are barred from applying for an extension:

  • VWP – Visa Waiver Program participants
  • D – nonimmigrant crew members
  • C – nonimmigrants in transit through the US
  • TWOV – individuals in transit through the US without a visa
  • K – nonimmigrant fiancés of a US citizen, and their dependents
  • S – nonimmigrant informants on organized crime and terrorism, and their accompanying family members

Who is Eligible to Apply for a Change of Status with Form I-539?

Applicants for a nonimmigrant change of status are held to the same qualification standards as those seeking an extension of stay. Namely, you were lawfully admitted to the US, your nonimmigrant visa is still valid, you haven’t violated the terms of your visa, and you haven’t committed a crime that would jeopardize your visa status. 

Nonimmigrants who meet these eligibility requirements may petition for a change of status if their visa falls within one of the following categories:

  • A-1 & A-2 – Prime Ministers, ambassadors, career diplomatic officers, and consular officers, and their immediate family members
  • A-3 – personal employees, servants, and attendants of diplomatic and other government officials, and their immediate family members
  • B-1 & B-2 – visitors traveling to the United States for business or pleasure
  • G-5 – personal employees, servants, and attendants of foreign government officials, and their immediate family members
  • H-4 – Dependents of temporary skilled and unskilled workers and trainees
  • L-2 – Dependents of intracompany transferees
  • M – vocational students and their dependents
  • N – parents and children of individuals who have been granted special immigrant status
  • NATO-1 – NATO-5 – certain officials, employees, and persons associated with NATO, and their immediate family members
  • NATO-6 – civilians and their immediate family members
  • NATO-7 – personal employees, servants, and attendants of NATO representatives, employees, officials, and their immediate family members
  • O-3 – dependents of aliens with extraordinary ability, and their assistants
  • P-4 – dependents of entertainers and athletes
  • R-2 – dependents of religious workers
  • V – certain second-preference beneficiaries
  • TD – dependents of Mexicans and Canadians under NAFTA

Vocational students with an M-1 visa may be eligible to apply for an adjustment of status, but they cannot change to an academic student (F-1). Similarly, they cannot switch to a temporary worker (H) if the training that they received in the US already provided the qualifications for the temporary worker position being sought.

Which Categories are Prohibited from Applying for a Change of Status?

There are five programs that are prohibited from seeking a change of status:

  • VWP – Visa Waiver Program participants
  • D – nonimmigrant crew members
  • TWOV – individuals in transit through the US without a visa
  • K – certain spouses and fiancés of a US citizen, and their dependents
  • S – nonimmigrant informants on organized crime and terrorism, and their accompanying family members

International exchange visitors (J-1 nonimmigrants) are barred from changing their status if they were admitted to the US to receive graduate medical training, or if they are required to meet the foreign residence requirement. J-1 nonimmigrants can request a waiver for either of these restrictions, but if the waiver request is denied they may only change to an A or G visa.

 

Call our Immigration team at(480) 626-2388 to discuss your case today.

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