Non-Immigrant Status

In general, there are two categories for visas in the United States: immigrant and nonimmigrant visas. Immigrants who intend to permanently work and live in the United States should apply for an immigrant-based visa. On the other hand, immigrants who intend to stay in the United States on a temporary basis, should apply for a nonimmigrant-based visa.

A nonimmigrant-based visa, also known as a temporary visa or a visitor visa, is a type of visa that is issued to an immigrant who does not intend to apply for lawful permanent resident status or to become a U.S. citizen. In other words, they are visiting the United States for a specific reason and only for a certain amount of time.

Immigrants who are in the United States for temporary purposes, such as for work, school, medical treatment, or a long vacation, and who wish to extend their stay will need to file a request for an extension with the United States Citizenship and Immigration Services (“USCIS”) agency. They may do this by filling out and submitting Form I-539, Application to Extend or Change Nonimmigrant Status, which can be found on the website for the USCIS.

It is very important that nonimmigrant visitors who hold a temporary visa submit this form at least 45 days in advance before their current temporary visa expires. Temporary visa holders who fail to file an application before their temporary visitor status expires may be subject to removal from the United States and may even be banned from returning. Accordingly, it is strongly recommended that temporary immigrant visitors submit this form on time. 

In general, temporary immigrant visitors who file a petition to extend their stay are typically approved for an extended temporary visa if they can supply adequate justifications as to why they need the extension. However, it should be noted that the length of time that a temporary visa is extended for will depend on an individual’s reason for staying in the United States.

For example, those who hold a temporary visa based on their status as a government representative, a diplomat, or is a staff member for either party, will be allowed to remain in the United States for as long as they are a member of this diplomatic category. On the other hand, registered nurses who are here on a temporary nonimmigrant visa may not extend their stay for longer than the three-year maximum restriction placed upon this category. 

In addition, non-U.S. residents who are visiting the United States for the purposes of business or pleasure and are admitted to travel to the United States through the U.S. Visa Waiver Program (“VWP”), will not be permitted to extend their stay beyond the program’s prescribed 90-day limit.

Who May Apply for a U.S. Visa Extension?

Nonimmigrant visitors who are staying in the United States on a temporary basis may petition to have their stay extended or may apply for a change of status by filing an extended visa application. Some nonimmigrant visitors who may be eligible to submit such a request include the following:

• Those who fall under the diplomatic category mentioned in the example above;
• Nonimmigrants who have a clear criminal record or have not committed any crimes that would make them ineligible for a visa;
• Nonimmigrants who have complied with the conditions of their visa and have abided by the rules for entry into the United States; 
• Nonimmigrants who were lawfully admitted into the United States with a nonimmigrant visa;
• Those whose passport is valid and remains valid for the duration of their stay in the United States; and 
• Those who have applied for an extension before their current visa has expired.

Who May Not Apply for a U.S. Visa Extension?

There are certain categories of visitors who may not request to extend their temporary nonimmigrant status. Some visitors who may not be eligible to extend a U.S. nonimmigrant-based visa include the following:

• Crew members: Crew members who are classified as Class D crew members may not request an extension. They may remain in the United States for a maximum period of 29 days. Class D crewmembers may also not request a change of status. For instance, international flight attendants would fall under this category.
• Foreign-born nationals in transit: Foreign-born nationals who are only in the United States for travel purposes or are in transit without a visa may not request to have their stay extended.
• K1 or K2 visa holders: Fiancées or dependents of a fiancé who are in the United States on a K1 or K2 visa will not be granted an extension or change of status. 
• Visitors in the VWP Program: As mentioned above, non-U.S. residents who are visiting the United States for the purposes of business or pleasure through the VWP program will not be permitted to apply for an extended temporary visa after the prescribed 90-day limit expires.
• Informants: Those who are here for the purposes of providing information to law enforcement regarding terrorism or organized crime events may not apply to extend their S nonimmigrant visa. Family members who are accompanying said informants may also not apply to extend their stay in the United States.

What is the Application Process for a Visa Extension in the U.S.?

The application process for a visa extension in the United States will vary based on the specific type of visa that a nonimmigrant holds. In other words, the reason for why an individual is visiting the United States as well as why they need an extension will affect each individual’s requirements to complete this process.

In general, the process to apply may involve taking some of the following steps:

• Completing and filing Form I-539, Application to Extend or Change Nonimmigrant Status, with the USCIS;
• Paying the filing fees associated with an applicant’s submission; 
• Providing any necessary evidence or supporting documentation, along with the application; 
• Scheduling and attending a biometrics services appointment; 
• Scheduling and attending an interview with an immigration officer if one is requested; 
• Making sure that all information is complete and promptly following-up requests received for additional information or original documents of copies that were initially submitted with the initial filing of the application; 
• Awaiting a decision;
• Appealing a decision that is unfavorable to the applicant within 30 days of them receiving it; and
• Complying with any and all further instructions based on the requirements for each of the specific eligibility categories. 

To learn more about the process to apply for an extended temporary visa, a prospective applicant should consult a local immigration attorney immediately for further legal advice. An applicant should also review their individual requirements, which are located on the website for the USCIS and can be found under the instructions for Form I-539.

What if My Visa for My Authorized Stay Has Already Expired?

As previously discussed, it is very important that temporary nonimmigrant visa holders file a petition to extend their stay at least 45 days in advance before their current visitor visa runs out. This can help to ensure that if any issues arise during the application process, those issues will be resolved before their stay expires. 

If a current temporary visa lapses before a person’s stay is extended, this could jeopardize the validity of their future status in the United States. They also may be subject to removal and/or potentially even banned from returning to the United States. However, there may be some exceptions to this general standard.

For instance, if the applicant can provide a valid reason as to why they failed to file for an extension before their current visa expired, then they may be able to avoid the penalties associated with this conduct.

In order to be excused from the repercussions for failing to file an extension to remain in the United States, an applicant will need to prove the following:

• That the delay was due to circumstances that were extraordinary or beyond their control;
• That the length of the delay was valid or reasonable; 
• That the applicant has not otherwise violated their temporary nonimmigrant visitor status;
• That the applicant is still a bona fide nonimmigrant; and
• That they are not currently being processed for removal or in removal proceedings before an immigration court. 

Do I Need a Lawyer to Extend My Nonimmigrant Status?

The process to extend the status of a nonimmigrant visiting the United States can sometimes pose issues that may be challenging, which can cause an applicant to feel pressured or stressed. Thus, to ensure that the process to file an application to extend or change the status of a nonimmigrant goes smoothly, you may want to consider hiring a local immigration attorney for further legal guidance. 

An experienced immigration attorney can help you navigate the process of changing your temporary visa status. Your attorney can also assist you in completing the necessary forms and can make sure that your application is filed before the deadline. In addition, your attorney can explain any issues that you do not understand and can suggest alternative options in the event that your application is denied.  

Finally, if you need to appear before the immigration court for any reason or are in the process of being removed from the United States, your attorney can also help to protect any rights you may have under U.S. immigration laws and will be able to provide legal representation in court.