Change of Status Denied and I-94 expired – What are my options?

Change Of Status and Timely Filing

• When a person present in the United States in one nonimmigrant (temporary) status wishes to engage in a primary activity permitted only under a different nonimmigrant status, a Change of Status (“COS”) is required to be filed with United States Customs and Immigration Service (“USCIS”). For example, if a tourist on B-2 visa decides to attend school, he would have to change his nonimmigrant status from B-2 to either F-1 or M-1 (“Student Visas”).
• Timely filing of the COS is one of the factors which affects outcome of the filing. Hence, a COS application must be properly filed before the your authorized stay (I-94) expires.
• It is recommend that you apply at least 45 days before your I-94 expires.

Options for Changing Status

There are two options to change your nonimmigrant visa classication:

1. Consulate Processing

   Under this option, you would have to leave the United States, and apply for the appropriate visa at a U.S. consulate abroad (which may require an approved nonimmigrant petition depending on the visa category).
   Once your visa interview is approved, you would be able to reenter the United States in the new nonimmigrant classification.

2. Change of Status while remaining in the United States

   Under this option, a petition will have to be filed with USCIS to request a COS to a different non-immigrant classification. Once USCIS approves the COS, you will receive an approved I-797 Approval Notice with a new I-94. The I-94 will show the approved time you are permitted under the nonimmigrant classification in the United States.

Change of Status pending while I-94 has Expired

USCIS can take several weeks to approve a COS. In many cases, although you may have filed the COS with USCIS on time, because of the processing delays, your current I-94 might have already expired while you await a decision from USCIS on the pending COS.

There are two options:

• You can either continue staying in the United States awaiting COS decision from USCIS. You will have to then make your next move, based on the USCIS decision.
• You can leave the United States while COS decision is pending. However, once you leave the country, your change of status application is considered abandoned.

Will I accrue “Unlawful Presence”, if I continue staying in the United States after I-94 expiry, until my Change of Status Application is pending?

NO. Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your change of status application is pending if it was filed prior to the expiration of your I-94. Hence the 3/10 year bar for “unlawful presence” will not apply in your case, even if the COS is later denied.

Can I be placed under Removal Proceeding if my Change of Status Application is pending, and my I-94 has expired?

YES. Your lawful nonimmigrant status ends and you are considered “out of status” when your Form I-94 expires, even if you have timely applied to change your nonimmigrant status. Although, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your change of nonimmigrant status request. It is however, possible that Department of Homeland Security (“DHS”) may bring a removal proceeding against you, even if you have an application for change of status pending.

What happens when my Change of Status Application is Approved?

If your application for a change of status is approved, you will receive an approved I-797 Notice from the USCIS, along with a new I-94. The I-94 will be backdated and adjusted to the date your previous I-94 expired. As a result your status during the pendency of your COS application will then be considered to have been lawful.

Since your nonimmigrant visa classification has changed, the next time you leave the United States, you would have to schedule an appointment at the U.S. Consulate in your home country (or a Third Country, if allowed in a few situations), and get your visa stamped at the consulate, before you can be admitted in to the United States on the new nonimmigrant classification.

What happens if my Change of Status Application is Denied?

• If your application is denied, you should depart the United States immediately. If you continue staying in the United States, you will begin accruing “Unlawful Presence”, and a 3/10 year bar may be applied to all your future entries in the United States.
• Also, any nonimmigrant visa in your passport granted in connection with your classification will become void. Although, there wouldn’t be any stamp on your passport suggesting it is void, an entry would have been made in the computer systems making your visa void for future entry. So, for example if you have a 10 year multiple entry B1/B2 visa, and if you had applied for a change of status to F-1 which was subsequently denied, your B1/B2 would become void. Any future entries on B1/B2 without obtaining a new visa may be disallowed.
• If you wish to enter the United States in future, on same or different classifcation, you must submit a new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).