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Change of Status/Pending Change of Status and Extension Applications

When a foreign national present in the United States in one nonimmigrant classification decides to engage in a different primary activity allowed in another nonimmigrant classification, the foreign national has two options. S/he can either leave the United States and apply for a new visa in the new classification at the Consulate abroad, or s/he can file for a Change of Status (I- 539) through the Citizenship and Immigration Services (CIS). In order to be eligible to change status within the United States, the applicant must have been lawfully admitted to the US as a nonimmigrant, is continuing to maintain that status, and is not inadmissible for having been unlawfully present. A Change of Status must generally be filed before the applicant's authorized stay expires. The filing of an application for Change of Status does not extend one's current status, and one may not assume the new status until it is approved by CIS. The applicant must also qualify for the new classification sought. There are statutory ineligibility provisions.

Requiring Change of Status From B to F-1 or M-1 Nonimmigrant (April 12, 2002)

This interim rule amends the Immigration and Naturalization Service
(Service) regulations by eliminating the current provision allowing a
B–1 or B– 2 nonimmigrant visitor for business or pleasure to begin
attending school without first obtaining approval of a change of
nonimmigrant status request from the Service.

The amendment will ensure that no B nonimmigrant is allowed to enroll in
school until the alien has applied for, and the Service has approved, a
change of nonimmigrant status to that of F–1 or M–1 nonimmigrant
student.(.pdf file, click on lick)

Period of stay authorized by the Attorney General after 120 day tolling period in determining “unlawful presence” under INA section 212(a)(9)(B)(ii).

On March 3, 2000 the Immigration and Naturalization Service issued two memorandums: the first concerns the period of stay authorized by the Attorney General with Respect to Pending Change of Status and Extension Applications after the 120-day tolling period for purposes of section 212(a)(9)(B)* of the Immigration and Nationality Act. The other one concerns Section 222(g) of the Immigration and Nationality Act (automatic voidance of nonimmigrant visas (and combination nonimmigrant visa/border crossing cards).

  • 3-3-00 Pearson Memo: TOLLING FOR GOOD CAUSE;
  • 9 FAM 40.92 N1 Interpretation of "Unlawful Presence" 09-11-2002;
  • Interpretation of “Period of Stay Authorized by the Attorney General” in determining “unlawful presence” under INA section 212(a)(9)(B)(ii). Janice Podolny /s/ Chief, Inspections Law Division, Office of General Counsel, March 27, 2003;
  • Guidance on Interpretation of “Period of Stay Authorized by the Attorney General” in Determining “Unlawful Presence” under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (Act) April 2, 2003 Thomas E. Cook /s/ Acting Assistant Commissioner Office of Adjudications.

Under current Service policy, if a decision is not rendered with Respect to Pending Change of Status or Extension Applications within the tolling period aliens admitted to the United States until a specific date begin accruing unlawful presence on the 121th day after the expiration of their Form I-94.

Because of the current backlogs, which in some cases extend beyond six months, aliens who remain in the United States while the E/S (extension of stay) or C/S (change of status) is pending may incur a 3-year or even a 10-year bar to admission if the application is ultimately denied.

Therefore, in order to alIeviate problems aliens may encounter concerning "unlawful presence" through no fault of their own, the Service has determined that Nonimmigrants who were admitted until a specific date and who apply for E/S or C/S and whose applications have been pending beyond the 120 day tolling period should be considered to be in a period of stay authorized by the Attorney General, if certain requirements are met.

Because these requirements are the same as those for tolling under section 212(a)(9)(B)(iv) of the Act, the Service has further determined that the period of stay authorized by the Attorney General covers the E/S or C/S applications for the entire period that it is pending. As a practical matter, this policy applies only to those Nonimmigrants who were admitted until a specific date and whose I-94 has expired while the E/S or C/S application is pending. If the Service approves the E/S or C/S application, the nonimmigrant will be granted a new period of stay authorized by the Attorney General, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted pursuant to 8 CFR 214.2. No unlawful presence accrues.

Requirements for Period of Stay Authorized by the Attorney General with Respect to Pending Change of Status and Extension Applications:

(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1 (c)(4) and 8 CFR 248.1 (b).

(B) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and

(C) The change of status or extension application has been pending with the Service for more than 120 days after the date the l-94 expired.

*ALIENS UNLAWFULLY PRESENT (INA 212(a)(9)(B))

(i) IN GENERAL. Any alien (other than an alien lawfully admitted for permanent residence) WHO

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.

(ii) CONSTRUCTION OF UNLAWFUL PRESENCE. For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) EXCEPTIONS. (I) MINORS. No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i). (II) ASYLEES No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States. (III) FAMILY UNITY. No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i). (IV) BATTERED WOMEN AND CHILDREN.

(iv) TOLLING FOR GOOD CAUSE. In the case of an alien who (I) has been lawfully admitted or paroled into the United States, (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and (III) has not been employed without authorization in the United States before or during the pendency of such application, the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

(v) WAIVER. The Attorney General has sole jurisdiction to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause. [Amended by sec. 301(b) of Pub. L. 104-208; Sept. 30, 1996.]

OTHER NONIMMIGRANT EMPLOYMENT VISAS

L-1 visa

An L-1 visa can be issued to a foreign national employee who has worked abroad for at least one continuous year within the three years immediately preceding the transfer for a qualifying, related business entity (e.g., parent, subsidiary, affiliate) in an executive, managerial or specialized knowledge capacity and who is being transferred to the U.S. to work for the same Employer or a parent, subsidiary or affiliate of the Employer. The Employer must be doing business in the U.S. and at least one other country for the duration of the employee's stay in the U.S. as an L-1 nonimmigrant. Managers and executives may be admitted for up to seven years. Specialized knowledge employees may be admitted for up to five years and if promoted to a managerial or executive position after admission (and if INS is properly notified of the promotion) may remain for up to seven years.

P-1 visa

The P category is reserved for athletes, artists and entertainers who are entering the U.S. temporarily for a specific event, competition or performance.

O-1 visa

Nonimmigrant visas for aliens of extraordinary ability in the sciences, art, education, business, or athletics who have extraordinary ability demonstrated by sustained national or international acclaim and are coming temporarily to the U.S. to continue work in the area of extraordinary ability. For aliens in the television and motion picture industry, one must have a demonstrated record of extraordinary achievement and must be coming temporarily to the U.S. to work in the area of extraordinary achievement.

9 FAM 41.55 ALIENS WITH EXTRAORDINARY ABILITY : Foreign Affairs Manual (pdf file)*

* You will need Acrobat Reader to view this document: Download Adobe Acrobat Reader: Adobe? Acrobat? Reader? is free, and freely distributable, software that lets you view and print Adobe Portable Document Format (PDF) files

Q visa

For aliens who are coming to the U.S. for a period not to exceed 15 months, as a participant in an international cultural exchange program designed to provide practical training, employment and the sharing of the history, culture and traditions of the country of the alien's nationalit

R visa

The R visa is for religious workers and their immediate family members.

41.58 Aliens in Religious Occupations, Foreign Affairs Manual (Word Document)


APPLYING FOR THE VISA: A system for booking non-immigrant visa interviews. Interviews may be booked at the U.S Embassy in Ottawa, Canada and selected Consulates and Consulates General in Canada and Mexico.

Multiple Entry Visa Application

In order to apply for the H-1 visa stamp through a U.S. Consulate or Embassy you will need the following (please note: processing times will vary depending upon the Consulate or Embassy you visit): 1.Form I-797 (original approval notice); 2.A certified copy of your H-1 petition; 3.A passport valid for 6 months beyond the expiration of your H -1B petition; 4.Passport size color photograph; 5.Completed nonimmigrant visa application - Form OF-156 (available at the U.S. Embassy); 6.Copies of your diploma(s); 7.Letter of support from your employer 8.Copies of recent paycheck stubs 9.Copies of all U.S. tax returns filed in connection with any U.S. employment.

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NAFTA, North American Free Trade Agreement

U.S. Employment of Canadian and Mexican Professionals under NAFTA (10/24/03)

Who qualifies for a "TN" visa?

The TN-1 nonimmigrant visa classification was created by the 1992 North American Free Trade Agreement ("NAFTA"), and applies exclusively to Canadian citizens temporarily entering the United States to engage in business activities at a professional level. Unlike the more common H-1B visa classification, the TN-1 category is only open to Canadian citizens who shall work in certain pre-designated professions.

Certain professionals may work in the U.S. in "TN" status even though they have been employed as H-1B's for six years. Under section 214(e)(2), INA, only persons who are citizens of Canada or Mexico may seek to qualify to enter the U.S. in Trade NAFTA ("TN") professional status. Under the North American Free Trade Agreement (NAFTA) a citizen of a NAFTA country may work in a professional occupation in another NAFTA country provided that 1) the profession is on the NAFTA list, 2) the alien possesses the specific criteria for that profession, 3) the prospective position requires someone in that professional capacity and 4) the alien is going to work for a U.S. employer. The spouse and unmarried, minor children of the principal alien are entitled to the derivative status, but they are unable to accept employment in the United States. Aliens entering under this classification are considered non-immigrants

The requirements for Canadians and Mexicans are not the same.

Citizens of Canada must provide the following at the port of entry:

1. A request for "TN" status;

2. A copy of the applicant's college degree and employment records which establish qualification for the prospective job;

3. A letter from the alien's prospective U.S.-based employer offering him or her a job in the United States, which is included on the professional job series (NAFTA list); and

4. A fee of U.S. $50.00. Canadian citizens are not required to obtain a visa, but instead receive "TN" status with the Immigration and Naturalization Service (INS) at the port of entry. The "TN" status will only be granted if the period of stay is temporary.

Typically, Canadian citizens flying to the United States from Canada will apply for their TN-1 visa applications at designated "Pre-Flight Inspection stations" - located within major Canadian international airports - before leaving Canada. Many U.S. employers hiring Canadian citizens find that they can bring their candidates "on board" (and on U.S. payroll) within a matter of days or weeks, rather than the months-long wait that the H-1B or L-1 visa application process usually requires.

INS presumes that all applicants for admission to the United States (including TN-1 visa applicants) are "intending immigrants". All foreign citizen attempting entry to the United States may be denied admission unless they can prove they have no intention of immigrating to the United States. Though there is an exception to this rule in the case of H-1B and L-1 visa-holding applicants for admission, TN-1 visa applicants remain subject to this presumption. Therefore, all TN-1 visa applicants must show that they do not have any intention of immigrating to the United States while they remain in TN-1 status.

The requirements for Mexican citizens are as follows:

1. First, the prospective employer must file a labor condition application;

2. Then, the applicant's prospective employer must file an I-129 "Petition For Non-Immigrant Workers" with the Immigration and Naturalization Service (INS); and

3. After the petition has been approved, the alien must apply for a non-immigrant visa at a U.S. Embassy or Consulate in Mexico.

How can an application for extension of temporary stay be made?

Applications for extension of stay are processed by the Immigration and Naturalization Service (INS). Canadian citizens have two options. First , they may have their employer file an I-129 form at the closest regional INS office. This option does not require leaving the U.S. Second, Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application. Mexican citizens must have their employers renew their labor certification and file another I-129 with their regional INS office in order to extend their stay. Professionals under the North American Free Trade Agreement. (F.A.M.word doc.)

How strict are the qualifications for computer science degrees for a TN visa?

Under the NAFTA agreement, Computer Systems Analysts are permitted to enter the United States in Trade NAFTA (TN) status as long as they have a Bachelor's degree in computer science or a related subject, or a post secondary diploma or post secondary certificate and three years of computer experience on a professional level.

Health care professionals from Canada or Mexico can enter the U.S. in "TN" or "Trade NAFTA" status: dentists, dietitians, medical technologists, nutritionists, occupational therapists, pharmacists, physicians (teaching and research only), physical therapists, psychologists, recreational therapists and (perhaps most importantly) registered nurses. TN status is comparatively easy to obtain and can be renewed indefinitely, which makes Canadian nurses, who ordinarily speak English as their first language, a particularly good option.

  • NAFTA Handbook, November 1999, U.S. Immigration and Naturalization Service (516 KB .pdf file)
  • INS NAFTA Memo: In August 2000 the INS Western Region distributed a set of memos to the field regarding adjudication of TN status applications under NAFTA. (.pdf file)
  • TNTalent Inc. is an IT recruiting company based in Denver, Colorado. They bring top IT talent from all of North America to high tech companies in the United States. They recruit the best trained professionals from Mexico and Canada, taking advantage of the TN visa, which does not have any yearly quotas, and is given only to Mexican and Canadian professionals thanks to the North American Free Trade Agreement(NAFTA).Recruiting firm that brings the top IT professionals from Mexico to high-tech companies in the United States.

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