If you are a foreigner holding a non-immigrant visa who wishes to change your US visa type, you should file an Application to Extend/Change Non-immigrant Status (Form I-539) with the U.S. Customs and Immigration Services (USCIS) at least 60 days before the date their visa is set to expire.
Eligibility to Extend Non-Immigrant Visa
Change your status in the United States if you meet these conditions:
• Were lawfully admitted into the United States as a non-immigrant;
• There is no other factor that requires you to depart the United States prior to making a reentry based on a different classification (for example, a USCIS officer may determine that you should obtain a new visa prior to being readmitted into the
United States)
• You have not committed any act that would make you ineligible to receive an immigration benefit;
• You submit an application for a change of status before the expiration date on your Form I-94, Arrival-Departure Record. (There are certain very limited circumstances under which USCIS will excuse a late submission.)
NB: Your passport must be valid for your entire requested period of stay in the new nonimmigrant classification in the US
How do I know if I am not eligible to change my status in the US?
If you were admitted in any of the following non-immigrant categories, you cannot change your non-immigrant status and must depart the United States:
K-1 or K-2 (Fiancé(e) or Dependent of Fiancé(e))
C (Alien in Transit)
D (Crewman)
S (Witness or Informant)
TWOV (Transit without Visa)
WT or WB (Under the Visa Waiver Program, you would have been issued a green Form I-94W, Nonimmigrant Visa Waiver Arrival-Departure Record)
If you were admitted in any of the following non-immigrant categories, there are certain restrictions concerning your ability to request a change in your non-immigrant status:
J-1 (Exchange Visitor subject to the 2-year foreign residence requirement cannot change status, with certain exceptions)
M-1 (Vocational student cannot change status to F-1) (Vocational student also cannot change status to any H classification—if the vocational training helped him or her qualify for the H classification)
NB: If you are in any of the above categories, you must depart the United States on or before the date your I-94 expiry
How do I change my nonimmigrant status?
Application procedures depend on the nonimmigrant status to which you want to change:
• Employment-Based Categories:
If you want to change your status to one of the following employment-based nonimmigrant categories, your prospective
employer should file a Form I-129, Petition for a Nonimmigrant Worker, before your Form I-94 expires. The Form
I-129 serves two purposes to establish that:
–You will be performing the type of work covered by the new nonimmigrant classification for the petitioner; and
–You individually meet all requirements for changing your status. It should be noted that you cannot begin work in the new classification until we approve the change of status as opposed to H-1B portability which allows you to work for a new employer under the same status while an application is being processed.
Each of the below categories can change status to another US Visa but has specific requirements and limits, including limits on the length of stay in this country. For more information, contact the employer who has offered you temporary employment or qualified immigration counsel.
E-1 and E-2 (Treaty Traders, Treaty Investors, and Employees of Treaty Traders and Treaty Investors)
E-3 (Skilled Professionals from Australia)
H-1B, H-2A (Temporary Skilled or Unskilled Workers H-2B, or H-3 and Trainees)
L-1A or L-1B (Intracompany Transferees)
O-1 or O-2 (Aliens with Extraordinary Ability and Their Assistants)
P-1, P-2, or P-3 (Athletes and Entertainers)
Q-1 (International Cultural Exchange Visitors)
R-1 (Religious Workers)
TN-1 or TN-2 (Canadians and Mexicans under the North American Free Trade Agreement (NAFTA))
NB: If your prospective employer files a Form I-129 to change your status, and your spouse or unmarried children under age 21 also want to change status to remain as your dependents, they need to file a Form I-539, Application to Extend/Change Nonimmigrant Status. Note that they can all be included on one I-539. It is best to file the I-129 and I-539 forms together so that they may be adjudicated about the same time. Remember, though, that they are separate applications. Therefore, you and your family members (and your employer) must follow the instructions and file all the supporting documents with each application, even when filing forms together.