As a foreign national in the United States with a nonimmigrant status it is important to avoid falling out of immigration status and staying in the U.S. unlawfully. If you attempt to switch from one immigration status to another without leaving the U.S. it can be quite risky in terms of timing. There are legal ways to make the switch even with a time gap, so you must do your best to not let one status lapse without having another one in the meantime.
What Happens When Your Authorized Stay in the U.S. Expires
Every beneficiary of a nonimmigrant visa must be mindful that their authorized stay in the U.S. will eventually expire. That expiration date is specified on the Form I-94 Arrival/Departure Record. Note that F-1 Student visa holders are an exception; their visa usually states, “D/S” for duration of status, which means they can continue with their studies until completed as well as other authorized employment known as Optional Practical Training (OPT), following their graduation.
Under the terms of your nonimmigrant visa, you no longer have lawful status in the U.S. when you have reached the end of your permitted stay and any “grace period.” You will be expected to leave immediately as you no longer have lawful status.
In many instances, even though the actual visa stamp in your passport, which you received from the U.S. Consulate or Embassy overseas, might still be valid on its face, it can automatically become nullified. At this point, unless there are compelling circumstances beyond your control, or you fall within another exception, it is too late to attempt to take action to obtain a new legal status in the U.S. Even if you are eligible, the fact that your status has expired means that you cannot stay in the U.S. to apply for it.
To prevent this from happening, it is ok to plan and take action to extend or change your status before your expiration date approaches.
Some Exceptions Where a Gap in Status Can Be Overcome
Some important exceptions to the above rule are applicable. For example, if you entered the U.S. on a visa and later decided to marry a U.S. citizen, you can apply for a U.S. green card (Lawful Permanent Residence LPR through the process known as an Adjustment of Status) even after your expiration date, without having to leave the country. Take note that you will be unlawful up until the day you file your adjustment of status application, which means you will be at risk of being caught and placed into removal proceedings.
Another significant exception applies to individuals who have faced persecution in their home country or who are afraid that they would be persecuted if they returned home. They may apply for asylum even if their permitted time under a visa has run out. However, they are expected to submit their application either within one year of U.S. entry or one year of the expiration date of their permitted stay, depending on current policy.
Particular Visa Beneficiaries Can Apply to Extend Their Status in the U.S
If you take action in a timely manner, you may be able to receive an extension of status under your current visa (or change your status to another). Most U.S. visas allow a minimum of one extension. On the contrary, some entrants cannot extend their stay under any circumstances, including those who entered:
- Without a visa, using Visa Waiver Program (VWP)
- As a crew member (with a D Visa)
- In Transit with a C Visa
- In Transit Without a Visa (TWOV)
- As the fiancé(e) of a U.S citizen or dependent of a fiancé(e) (K Visa)
Anyone holding any other visa type 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 visa. Part of making plans to request a visa extension is to ask for advice from an immigration attorney to see if you are eligible.
Select Few Visa Recipients Can Submit an Application to Change or Adjust Their Status in the U.S.
If you are eligible for another type of visa other than the current one you are holding or for a U.S. green card (LPR status), you may be able to apply for it without leaving the U.S. You would be able to do so through either a change of status or an adjustment of status application.
Before Changing or Adjusting Your Immigration Status See an Attorney
One too many times visa holders have embarked on changing or adjusting their status without proper guidance. This is quite a complex area of immigration law, make sure to talk to your local immigration lawyer today. Do not delay in calling the Gambacorta Law Office today at 847 443 9303 for help.
