Can I Change My Non-Immigrant Status?

Many – but not all – non-immigrant visas allow for a change of status from one category to another.  In general, a person may apply for a change of status if that person was lawfully admitted to the United States with a non-immigrant visa, the non-immigrant status remains valid, the conditions of the status have not been violated, and the person has not committed any crimes that would make them ineligible.    A non-immigrant visa holder who overstays their visa or is found to be unlawfully present in the United States for more than six months is ineligible for a change of status.  

An individual who enters on a B-1 visa for business reasons does not need to apply for a change of status if that person desires to remain in the United States for pleasure during the period of their authorized stay.[1]  This is an example of a sensible policy balance.  Many individuals travel to the United States for a seminar or convention for their business where they may agree to contracts for new trade.  Often times these individuals travel with their families.  This balance allows the B-1 visa holder to attend the convention, enter into contracts, and travel with their family to tourist attractions after the convention ends.

A common issue for non-immigrant visa holders is school attendance for their family.  Many non-immigrant visas allow a spouse or child to attend school while the non-immigrant visa holder is in the United States.  This means that certain non-immigrants do not need to apply for a change of status for their family member to attend school because the visa they are traveling on already allows for school attendance. 

Examples of visas that allow for spouses or children to attend school are:

 A-visa (diplomatic, government officials, and employees); E-visa (international trade and investors); G-visa (representatives to international organizations and their employees); H-visa (temporary workers); I-visa (representatives of foreign media); J-visa (exchange visitors);L-visa (intra-company transferees); F-visa (academic) or M-visa (vocational).  The spouse and children of F or M-visa holder may only attend elementary, middle or high school.  If the spouse or child wishes to attend post-secondary school then they must apply for a change of status.[2]

There are several categories of non-immigrant visa holders that do not allow for a change of status under any circumstances.[3]  These categories include: D-visa (crew members); C-visa (in transit through the United States); TWOV (in transit through the United States without a visa); K-visa (fiancé or dependent of a fiancé); S-visa (informant on terrorism or organized crime). 

There are several visas that allow a change of status under limited circumstances.  For example, a M-visa holder (vocational student) may not change status to a F-visa (academic student) or any H-visa (temporary worker) if the training received as a vocational student in the United States provided the qualifications for the temporary worker position the individual seeks.  A J-visa holder (international exchange visitor) may not change their non-immigrant status if the visa holder was admitted to the United States to receive graduate medical training, unless a special waiver is granted.  If a J-visa holder does not receive a special waiver then he or she may only apply to an A-visa (diplomatic or other governmental official) or G-visa (representative to international organizations).[4]

Restrictions on change of status – or lack thereof – are another effort to balance the competing interests (security vs. free movement) of the non-immigrant visas.  The absolute restrictions on crewman visas (C and D visas) is an effort to allow a large number of individuals to travel in and out of the United States on a daily basis while not providing any legal path for them to act outside of this very limited purpose.  Consider the number of cruise line workers and airline staff that enter the United States on a daily basis.  Now consider the chaos if every bartender on the cruise ship was allowed to change status to a student.  At the same time consider the flexibility needed for the family of an H-1B worker.  A person comes to the United States to work for three years as an engineer with his wife and two children.  It does not make sense for the children to enter the United States and then change status in order to attend school. 

There are also foreign policy considerations.  The restrictions on the J-visa demonstrate that maintaining friendly relations with foreign countries is a consideration in immigration policy.  The J-visa allows an individual to receive foreign graduate medical training.  Obviously, highly trained medical personnel are an important need for the United States, but also for the foreign country.  Therefore, the foreign country must waive the restrictions on any change of status.

As you can see, even a seemingly simple process of changing from one visa to another requires a significant balance of the competing interests for non-immigrant visas.

[1] http://www.uscis.gov/visit-united-states/change-my-nonimmigrant-status-category/change-my-nonimmigrant-status

[2] Id.

[3] http://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf

[4] Id.