30.1 Maintaining Status.

(a) General .

Section 101(a)(15) of the INA specifies various classes of persons admissible to the U.S. as nonimmigrants. Requirements for admission in each category are discussed 8 CFR 214 and in Chapter 15.4 of the Inspector’s Field Manual . This chapter will discuss general requirements for maintaining status, changing status, and obtaining extensions of stay. Requirements for maintaining and changing status which apply only to specific nonimmigrant classes are discussed in Chapters 31 through 37 and Chapter 15 of the Inspector’s Field Manual . Matters relating to parole of aliens are contained in Chapter 16 of the Inspector’s Field Manual , and matters relating to Temporary Protected Status are contained in Chapter 38 of this manual.

(b) Activities Consistent with Status .

A nonimmigrant may engage only in activities consistent with his or her status. In general, the filing of an application for a different status or even the approval of a petition (for example an I-129 petition to accord H, L, O or P status), does not constitute authorization to engage in the activities permitted in the new status. (However, under certain conditions, an alien who is already in H-1B status may commence working for a new employer upon the filing of a new petition by that new employer.) With regards to a change of status applicant, it is only the formal approval of the change of status application by USCIS that constitutes authorization to engage in activities consistent with that new statu s. An alien who, prior to approval of a change of status, engages in activities not consistent with his or her present status is at risk fo being found to be in violation of status in the event the application is denied, although approval is often retroactive to the date of the original application [See Matter of Teberan , 15 I&N Dec. 689 (BIA 1976), and Matter of Dacanay , 16 I&N Dec. 238 (BIA 1977)]. However, in accordance with 8 CFR 248.1(c) , an alien may be granted a change of status to that of F-1 or M-1 student even though he or she may have begun attending the school even before the application was submitted.

There is a significant body of information available concerning what activities are or are not appropriate for particular visa classifications. The B-1 and B-2 classifications have historically been the object of many such interpretative discussions. If you have any questions concerning particular activities, you should consult available resources including: 8 CFR 214.2; Chapter 15.2 of the Inspector’s Field Manual ; the Department of State’s Foreign Affairs Manual (FAM), and precedent decisions.

(c) Voluntary Departure vs. Nonimmigrant Status .

Voluntary departure is not a nonimmigrant status. It is, however, regarded as an authorized period of time for purposes of section 212(a)(9). Accordingly, time spent in voluntary departure does not add to an alien’s unlawful presence. For example, a B-2 nonimmigrant files for an extension after his stay expires. The extension is denied and the alien is granted 15 days of voluntary departure. In calculating unlawful presence, count as unlawful the days between the expiration of the B-2 status and the issuanc e date of the Form I-210 granting voluntary departure, as well as any time after the voluntary departure expired, but do not count the 15 day voluntary departure period itself. Voluntary departure is discussed in 8 CFR 240.25 .

Although voluntary departure time is not counted when calculating unlawful presence, an alien who has been given a period of voluntary departure is not considered to be maintaining status for purposes of receiving an extension or status change [See Matter of Lennon , 15 I&N Dec. 9 (BIA 1974).].

(d) Contents Deleted and Moved to Chapter 40.9.2 [05-09-2009].