CHANGE OF STATUS

An individual who is in the U.S.  nonimmigration status may apply to change his or her nonimmigrant status if

1. he or she was lawfully admitted to the United States with a nonimmigrant visa,
2. his or her nonimmigrant status remains valid, 
3. he or she has not violated the conditions of such status, and 
4. he or she have not committed any crimes that would make him or her ineligible.

The period during which a timely filed Exchange of status  application is pending continues the alien’s period of authorized stay in the United States (allowing the alien to avoid accruing unlawful presence), but does not extend the alien’s period of “authorized status.

Change your nonimmigrant status is not allowed for individuals admitted to the United States in the following categories:

• Visa Waiver Program· Crew member (D nonimmigrant visa)
• In transit through the United States (C nonimmigrant visa)
• In transit through the United States without a visa (TWOV)
• Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
• Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)

To change the status or extent the status an individual has to file an Application to Extend/Change Status on Form I-539. Until you receive approval from USCIS, do not assume the status has been approved, and do not change your activity in the United States.

Changing status to H-1B

A person who plans to change status to H-1B that is subject to cap has to be in valid status until October 1 , the beginning of fiscal year. For example, a visitor, who is in valid B-2  status on the date of filing for change of status but whose status expires on August 15 will be considered out-of-status on October 1; therefore, the request for change of status will be denied.

Changing status from F-1 and J-1 to H-1B

Students who are in valid F-1 and J-1 status with duration of status (D/S) designation can file for change of status within the grace period which is 60 days for F-1 students and 30 days for J-1 students. If October 1 is withing this period they will remain in status. Moreover, the status and work authorization (in the absence of OPT) for a student who has timely filed for change of status to H-1B will be automatically extended until October 1, the H-1B start date to avoid the gap between an expiration of F-1 status and H-1B start date. The spouses of F-1 and J-1 students who are holding dependent status will loose their dependent F-2 or J-2 status on October 1 when F-1 or J-1 holder’s status will be changed to H-1. Therefore, the spouse has to file for change of status to H-4 within 60 days for F-1 students and 30 days for J-1 student. For example, Ivan was an F-1 student and his wife was in F-2 status. On October 2014 Ivan’s status had changed to H-1B based on his employer’s approved H-1B petition. This means that Ivan’s wife lost her F-2 status on October 1, 2014. She had 60 days to file an Application to change her status to H-4 (until November 30). She filed her application on December 1, 2014. Unfortunately, she was out of status on December 1, 2014 – the day she filed – and her Application was denied.

Change of status for  vocational student (M-1)  

M-1 student may not apply to change your status to a(n):

• Academic student (F-1)
• Any H status (Temporary worker) with some exceptions.

Changing status for international exchange visitor (J-1)

J-1 exchange visitor  may not change her nonimmigrant status if:

• admitted to the United States to receive graduate medical training, unless you receive a special waiver.
• required to meet the foreign residence requirement, unless you receive a waiver.
  • If you do not receive a waiver, you may only apply to change to a diplomatic and other government officials (A visa) or representatives to international organizations (G visa).

  Frequently asked questions.

  Q. My Change of Status from J2 to F1 is still pending, my husband is going to apply for change of status from J1 to H1B. Can I apply for H4 together with him while my change of status application is still pending before our J status gets expired this Oct.

  A. A change of status from J2 to H4 may be filed if the spouse is in J-1 pending H1.