What is change of status?
Change of status is a provision that allows foreign nationals who have been admitted into the U.S. in one non-immigrant status to change into another non-immigrant status without departing the U.S.
Who may apply for a change of status in the U.S.?
Foreign nationals may be eligible to change their non-immigrant status if they:
- Have been legally admitted into the U.S. as non-immigrant
- Have an expired I-94 and request a change of status before the expiration date
- Have not violated their status or committed any acts that render them ineligible
- Are not in certain non-immigrant status that prohibits a change of status in the U.S.
Who is not eligible for change of status?
The following non-immigrant categories are not allowed to change status:
- Aliens in transit
- K-1 or K-2 fiance or dependents of fiance
- Witnesses or Informants
- Transit without visa
- Visa waiver program
- J visa holders subject to 2 year home residence requirements without a waiver
What form do I need to file? What is the filing fee?
If you fall into one of the employment-based non-immigrant categories, such as E-1 or E-2; H-1B, H-2A, H-2B, or H-3; L-1A or L-1B; O-1 or O-2; P-1, P-2 or P-3; Q-1; R-1; or TN-1 or TN-2, then your prospective employer must file Form I-129, Petition for Nonimmigrant Worker, before your I-94 expires, provided that you meet the underlying requirements of the classification you seek. Note that you cannot begin work until USCIS approves the I-129 with specific validity dates indicated on the approval notice. The filing fee for I-129 is $465 (as of April 25, 2023). Note that there may be additional fees for H and L classification.
Dependents of the above employment-based categories or all other categories should use Form I-539, Application to Extend/Change Nonimmigrant status. The filing fee is $370 (as of April 25, 2023)*.
*NoteBeginning on October 1, 2023, Biometrics fees will be exempt for most applicants filing a Form I-539. Read more here.
I obtained approval for my change of status from B-2 to O-1 two months ago, but I need to travel in the coming months. Can I still re-enter the U.S. on my B-2 visa which is still valid?
No, you must apply for a O-1 visa, your new visa status, at the U.S. Consulate abroad.
Where and when should I apply for the new visa?
You should apply for the new classification at your home country, and allow yourself ample time when you next travel out of the U.S. If you have no travel plans, there is no need to make a trip to the consulate to obtain a visa. For non-petition-based nonimmigrant visa (except E), visa fee is $160. Petition based visa categories visa fee is $190 (see the US Department of State website for the most up-to-date visa fees). There may be a reciprocity fee and other fees such as L visa fraud prevention and detection fee in addition to the visa fees. Always check with the consulate’s website to determine the required and updates.
What if my change of status application is denied and my original nonimmigrant visa has expired? Can I file an appeal?
You will be considered out of status, and any period staying in the U.S. beyond the time your I-94 states will be considered overstay. You should depart the U.S. as soon as possible as it may have the negative impact if you are to pursue green card later. There is no appeal process available for change of status application, but you can file a motion to reopen (with new facts) or reconsider (stating that the denial decision is based on an incorrect interpretation of the law) with the USCIS.