Can a Foreigner Legally Hold Two Separate Immigration Statuses While in the U.S?

Are you a foreign national living in the U.S. with a nonimmigrant visa and you want to switch from one immigration status to the next without having to leave the United States? There are certain lawful ways to make the switch but it can be a little complicated timing wise. It is important to pay attention to not fall out of status and wind up overstaying.

What Happens When Your Authorized Stay Expires

As a beneficiary of a nonimmigrant visa, you are probably aware that the time granted to stay in the U.S. will come to an end at some point. An expiration date is stamped on a Form I-94 Arrival/ Departure Record. F-1 student visa holders are an exception as their visa usually says “D/S” for duration of status; this means they can stay in the U.S. until the completion of their studies and any authorized employment which is known as Optional Practical Training directly after graduation.

The goal should be to leave the U.S. before the time allotted on your I-94 or any “grace period” expires that might be granted under the terms of a nonimmigrant visa. Failure to abide by the terms and conditions of a visa will result in problems with immigration laws like a ban from re-entering the U.S. and even getting your visa revoked.

Unless there are circumstances beyond your control or you fall under another exception, it might be too late to take action to obtain a new legal status in the U.S. Even if you are eligible for another visa, once your immigration status expires you can no longer remain in the U.S. Talk to an immigration lawyer as soon as possible if you happen to overstay. To avoid overstaying in the U.S. plan ahead, always be alert and check the expiration date on the I-94 and be proactive when it comes to extending or changing your status.

Occurrences in Which a Gap in Status Can Be Beat

Here are some exceptions where extending or changing your status may be applicable. For example: if you came to the U.S. on a nonimmigrant visa and later decide to marry a U.S. citizen, you can submit an application for an adjustment of status for a U.S. green card even after your expiration date without having to leave the U.S. Take note that if you file after the expiration date shown on the I-94 you run the risk of accruing unlawful presence and of getting caught which may lead to being placed in removal proceedings. It is advisable to speak with a legal immigration expert before taking action.

Another important exception applies to foreigners who have encountered persecution in their home country or who fear being persecuted upon their return. These individuals can apply for asylum even if their authorized time has expired. The requirement is that people seeking asylum can apply either within one year of U.S. entry or one year of the expiration date of their permitted stay, depending on the present policy for asylum.

Not all Visa Beneficiaries Can Extend Their Status

Once you submit your application for an extension of your visa or a change of status, chances are you might get an approval. Majority of U.S. visa categories allow for one extension.

In contrast, a few entrants cannot extend their stay under any situation, including those who entered:

  • Without a visa, those who entered using a Visa Waiver Program (VWP)
  • Crew members (beneficiaries of a D visa)
  • In transit (C visa holders)
  • In transit without a visa (TWOV)
  • As the fiancé(e) of a U.S. citizen or dependent of a fiancé(e) (K visa), or
  • As an informant (or accompanying family member) with information on terrorism or organized crime (S visa).

If you hold any other type of visa, you will need to look into the length of the possible extension and whether there is a maximum set on the number of years you can spend in the U.S. on that specific visa. For example, if you entered the U.S. on a B2 tourist visa, you can extend for up to six months or even for a maximum stay of one year. Work visa holders can generally extend their stays even longer with the assumption that their employer will keep them longer.

A Change or Adjustment of Status Can be Done While in the U.S.

You can only change or adjust status when in the U.S. if you qualify for another visa classification other than the one you currently hold. Changing or adjusting status will require you to submit an I-539, Application to Extend/Change Nonimmigrant Status. But if you are changing status to start working your employer will need to file an I-129 petition on your behalf and also request work authorization for you.

Time to Consult with an Immigration Attorney

Do not be afraid to ask for help if you find yourself getting closer to falling out of your immigration status. Whether making an adjustment of status or requesting an extension will require the assistance of an immigration lawyer. Call Gambacorta Law Office at 847 908 4913 to get the help you need.