The immigration status an individual holds should reflect his/her primary purpose for being in the U.S. Occasionally, someone's purpose for remaining in the U.S. changes and he or she must apply for a change of nonimmigrant status. Individuals seeking to change to an employment-based status must work with their employer to file an employment-based petition and would not follow the procedures described here.
In order to change status in the U.S. the following must apply:
- the individual must be in lawful status (i.e. his/her I-94 card cannot be expired and he/she cannot have worked without permission or otherwise violated the terms and conditions of his/her nonimmigrant status.) and
- He/she must be eligible for the new status for which he/she is are applying.
Timing after a recent entry into the U.S.
If an individual has recently entered the U.S., the timing of the change of status application can become an issue. Immigration admits an individual into a particular status based upon what that person said his or her reason for coming to the U.s. was. To apply for a change of status fairly soon afterwards would seem to imply that the person did not tell the truth - or at least not all of it. If Immigration thinks someone lied about their reason for coming to the U.s., they will most likely deny the application for change of status. Individuals who recently entered the U.S. may wish to consider the following strategies when thinking about changing their nonimmigrant status:
- leave the U.S. and applying for the corresponding entry visa at a U.S. consulate.
- wait until enough time has passed that is is reasonable to believe that plans have change since entering the U.S.; or
- document that the individual fully disclosed his or her intentions at the border (or at during the visa application of the visa was also recently issued). Example: if entering as a visitor/tourist and telling the consular officer or the border officer that the reason for coming to the U.S. is to look at prospective schools, if either the visa in the passport or the I-94 card issued at the border contains the annotation "prospective student" then there is no need to wait.