30.3. Change of Nonimmigrant Status Under Section 248.

(a) General .

Section 248 of the Act provides a nonimmigrant, lawfully admitted to the U.S., who is continuing to maintain the status in which he or she was admitted or previously changed, the opportunity to change from one classification under section 101(a)(15) of the Act to another, with certain restrictions. Its purpose is to allow such nonimmigrant, in meritorious situations, to avoid the delay and expense of departing from the U.S. and returning, in order to engage in activities other than those permitted in his or her original or current nonimmigrant visa category. The applicant must meet all eligibility criteria for the new category. An application for a change of status is filed on Form I-129 , Petition for a Nonimmigrant Worker or Form I-539 , Application to Extend/Change Nonimmigrant Status, as specified in 8 CFR 248.3, depending upon the nonimmigrant classification being sought. The I-539 is used for changes to A, B, F, G, I, J, M, N, S and NATO and for dependents of other classes when the principal has already been accorded another status. The I-129 is used for nonimmigrants seeking E, H, L, O, P, Q, R and TN status concurrently with approval of a petition to accord such status. Special requirements for each status are discussed in Chapters 31-35. No request or application is required to change status from B-1 to B-2. Other within-class changes, such as F-2 to F-1 or H-4 to H-1, require a formal application and fee even though they are not, strictly speaking, changes of status under section 248 of the Act.

(b) Limitations .

(1) Changes from a Specified Class (Chapter 30.3(b)(1), Revised 07-13-2005) .

An alien in classes C, D, K, S, WT, WB, or TWOV is ineligible for a change of nonimmigrant status. An alien admitted as an exchange visitor (J) who is subject to the two-year foreign residence requirement of section 212(e) of the Act and who has not received a waiver of that requirement, can change only to A or G status. See Matter of Kim , 13 I&N Dec. 316 (R.C. 1968). Any J nonimmigrant who was admitted (or acquired such status) to pursue graduate medical education or training is ineligible to change status, even if he or she obtains a waiver of section 212(e) . An alien who has been admitted as an Irish Peace Process Cultural and Training Program visitor (Q-2 alien) is subject to the two-year foreign residence requirement of section 212(t) of the Act. Such an alien cannot apply for another nonimmigrant status, an immigrant visa, or permanent residence until the residency requirement has been met or a waiver has been granted. However, 212(t) only applies to those Q-2 aliens who initially entered the United States on or after December 10, 2004.

(2) Changes to a Specified Class .

Although an application and fee are required, changing from J-1 to J-2 is not regarded as a change of status, therefore, it is not prohibited. An M-1 nonimmigrant cannot change to F-1 status or to H status if the M-1 training helped him or her qualify for H status. No nonimmigrant can be granted M-1 status in order to gain training necessary to qualify for H status. [See also 8 CFR 248.2 and §248 of the INA.]

(c) Form I-539 .

(1) Initial Receipting .

The applicant must file Form I-539 with the service center having jurisdiction over his or her place of residence. A single application may be filed by a family group. The basic procedures for receiving such applications are discussed in Chapter 10.

Note:

On April 12, 2002, the INS amended 8 CFR 248.1(c) to add a provision prohibiting most B-1 or B-2 nonimmigrants from changing status to that of F or M full-time student if that B-1 or B-2 nonimmigrant has already begun taking classes at the school. USCIS must deny the requested change if there is evidence that the alien has begun course work prior to the adjudication (approval) of the I-539 application. The rule applies to any B-1 or B-2 nonimmigrant who:

· Last entered the United States as a B-1 or B-2 nonimmigrant on or after April 12, 2002; or

· Although admitted to the United States as a B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an application for an extension of his or her nonimmigrant status on or after April 12, 2002; or

· Although admitted in any nonimmigrant category either before, on, or after April 12, 2002, filed an application for a change of nonimmigrant status to that of B-1 or B-2 on or after April 12, 2002; or

· Although granted a change of status to that of B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an application for an extension of his or her B-1 or B-2 nonimmigrant status on or after April 12, 2002.

An applicant who does not meet ANY of these four provisions is “grandfathered in” under the old (pre-April 12, 2002) regulations and is NOT subject to the bar.

(2) Preliminary Screening .

In addition to the steps described in Chapter 10 , preliminary review includes the following:

(A) Determine Jurisdiction .

Jurisdiction is generally based on the alien’s location in the United States. Consult with supervisory personnel before accepting an application which does not appear to be submitted in the proper jurisdiction.

Note:

Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction.

However, the Washington District Office and the New York District Office have jurisdiction over certain adjudications concerning A, G, NATO nonimmigrants.

· Changes into or within an A, G, or NATO Classification . Requests for change of status into or within an A, G, or NATO nonimmigrant classification are adjudicated exclusively by USCIS personnel from the Washington District Office, who meet weekly with personnel in the Department of State (DOS) Visa Office in Washington, DC, or by New York District Office personnel who work closely with the U.S. Mission to the United Nations (USUN) in New York. This was a long-standing arrangement between DOS and the former Immigration and Naturalization Service, which continues with USCIS. These two USCIS offices have assigned adjudicators to this function. Change of status requests into or within any of these classifications should not be adjudicated at any other district office or at a service center.

When an alien in the United States requests a change of nonimmigrant status into or within an A, G, or NATO classification, that request must first be considered by the DOS Office of Protocol, USUN for aliens assigned to the United Nations or to a foreign mission to the United Nations, or by the North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation (NATO/HQ SACT) for aliens assigned to a NATO command. A change within a classification would include instances in which aliens receive promotions or otherwise change their responsibilities and may require a change within the existing classification, for example, from A-2 to A-1.

How to Handle Requests for Change of Status into or within an A, G, or NATO Classification Filed at Other District Offices or Service Centers . Should another district office or service center receive a request for a change of status into or within an A, G, or NATO classification, the request should be returned to the alien, using the following recommended language:

“Your application was filed incorrectly. Please resubmit your application along with any required supporting documents to your embassy, international organization or permanent mission thereto, or NATO command. Your employing organization must first review this application and then forward it on to one of these certifying organizations: Department of State, U.S. Mission to the United Nations, or North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation. Following certification by one of these organizations, your application will then be submitted to the USCIS by one of them. You do not submit this type of application directly to USCIS.”

· Extension of Stay for A-3, G-5, or NATO-7 Classifications . Requests for an extension of stay for an A-3, G-5, or NATO-7 nonimmigrant are adjudicated exclusively by the Washington District Office or New York District Office, following a thorough review of the circumstances of such requests by DOS, USUN, or NATO officials. These officials are able to verify that the sponsoring employer continues to hold the qualifying position and to review updated employment contracts to ensure that the terms of employment are consistent with current requirements. Such requests f or an extension should not be adjudicated at other district offices or service centers.

How to Handle Extension of Stay Requests for A-3, G-5, or NATO-7 Nonimmigrants Filed at Other District Offices or Service Centers . Should another district office or service center receive any such request, the request should be returned to the alien, using the following recommended language:

“Your application was filed incorrectly. Please contact your employer’s embassy, international organization, or NATO command for proper filing procedures.”

· Change from an A, G, or NATO Classification . When A, G, or NATO aliens wish to change to another nonimmigrant classification, such requests are adjudicated at service centers, provided there is an endorsement by a DOS Visa Office or a USUN official at Part 7 on Form I-566 (Interagency Record of Request), accompanying Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker). Please note that the DOS Visa Office, not NATO/HQ SACT, endorses this form on behalf of NATO nonimmigrants.

Should questions arise during the adjudication, USCIS personnel may wish to consult with one of the following:

Diplomatic Liaison Division of the DOS Visa Office at telephone (202) 663-1743 or fax (202) 663-1608 -- for aliens in A classification and for aliens in G classification except those who are assigned to the United Nations, for example a G nonimmigrant working at the World Bank in Washington, DC;

Advisor for Host Country Affairs at USUN at (212) 415-4167 or fax (212) 415-4162 -- for aliens in G classification and assigned to the United Nations Secretariat or an individual mission to the United Nations;

Legal Affairs Office at NATO/HQ SACT at (757) 747-3640 or fax (757) 747-3310 -- for aliens in NATO classification.

· After the adjudication of a change of status from these classifications : USCIS officers must complete Part 8 of the revised Form I-566 by documenting action taken and returning a copy of that form to the appropriate office:

For the Department of State, Office of Protocol, use the following address:

Office of Foreign Missions

3507 International Place, NW

Washington, DC 20522-3302

For the U. S. Mission to the United Nations, use the following address:

U.S. Mission to the United Nations

799 United Nations Plaza

New York, NY 10017

For the North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation, use the following address:

NATO/HQ SACT

Legal Affairs Office

7857 Blandy Road, Suite 100

Norfolk, VA 23551

DOS, USUN, and NATO/HQ SACT update their records based upon information USCIS personnel provide on this form. Thus, it is important that a complete copy of the Form I-566 be forwarded promptly to the appropriate agency or organization, noting what action was taken and the date it was taken, as well as the name and telephone number of the adjudicating office for use in the event that should DOS, USUN, or NATO/HQ SACT have questions regarding the adjudication.

(B) Ensure Form I-94, either original or a copy, is submitted. If there are multiple applicants on a single application, insure a copy of each I-94 is attached.

Note 1:

Form instructions on Form I-539 indicate that aliens seeking B, F, J or M status are required to submit their original Form I-94. Others should submit only a copy of their I-94. If I-94 copies are submitted even though originals were required, or vice versa, and the application will be adjudicated in CLAIMS, continue processing unless there is some apparent need to examine an original form. The CLAIMS-generated approval notice, Form I-797A , includes a replacement I-94, which is to be attached to the original I-94. Return to the applicant any original I-94 which was improperly submitted.

Note 2:

If a change of status applicant claims to have lost his or her I-94, a separate Form I-102, Application for Replacement/Initial Arrival/Departure Record should be filed since the I-94 issued in the course of adjudicating the application indicates that it is to be attached to the original I-94. Verify arrival from NIIS or, if no record can be found, obtain a copy of the applicant’s passport page containing the admission stamp.

Note 3:

Inadmissibility Issues . At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and b een granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(C) Ensure the applicant has attached supporting documentation for the classification sought:

· Aliens seeking F-1 or M-1 status must submit the appropriate Form I-20 and evidence of financial ability to maintain the new status. Aliens seeking J-1 status must submit Form IAP-66.

· Aliens seeking A-3 or G-5 status must submit an executed Form I-566, a letter from their employer detailing their job duties and evidence of the employer’s status (usually an I-94).

· Dependents of various temporary workers must submit evidence of the principal alien’s status (or evidence of a pending request for such status).

Note:

Information relating to a principal alien’s status, if missing or questionable, may be verified in CLAIMS or NIIS. There is no dependent status for Q-1 or TN nonimmigrants; however, such dependents may separately qualify for nonimmigrant status, usually B-2.

Detailed discussions of supporting documents for each status are contained in Chapters 34 through 37.

(3) Adjudication .

Applications for a change of status on Form I-539 are relatively simple to adjudicate. Because the benefit sought is generally short-lived or time-sensitive, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant. The following actions, in addition to the steps described in Chapter 10.3, are ordinarily required during the adjudicative process:

(A) Determine if the application was timely filed .

Although ordinarily required, the adjudicator has discretion to grant a change of status based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings. If the alien is guilty of more than excusable tardiness (e.g., if he/she has worked without authorization or has committed a crime), the adjudicator has no discretion to excuse the tardiness.

(B) Verify passport validity .

An applicant need not submit a valid passport with his or her application, but must complete Part 4 of the application which contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the U.S.

(C) Determine if any and all required supporting forms, such as Form I-20, DS-2019, or I-566 are attached, properly completed, and endorsed. [See also Chapters 34-37 discussions of supporting documentation.]

(D) Determine if a Favorable Exercise of Discretion Is Warranted .

Change of status applications are discretionary in nature. In deciding whether a favorable exercise of discretion is warranted, consider such things as the alien’s financial ability to maintain the status sought, whether there was possible deception when the original visa or admission was sought, what the applicant’s ultimate intentions may be, veracity of documentation submitted, and the overall effects of a positive or negative decision. It is important to keep in mind that discretionary does not mean arb itrary. Given similar fact patterns, discretionary decisions should yield similar results regardless of where such cases are adjudicated or by whom. There is a significant body of precedent decisions which discuss the appropriate exercise of discretion under a variety of situations. Familiarity and conformity with these precedents are critical to achieving consistent and fair results in such cases.

Note 1:

Ability to Maintain Status . Maintenance of status is discussed generally in Chapter 30.1. In order to change status, an applicant must be a bona fide nonimmigrant, maintaining his or her current status [ Matter of Haddad , 10 I&N Dec 785 (R.C. 1964)]. Matter of Lee , 11 I&N Dec. 601 (R.C. 1966) found that an H-1 nonimmigrant’s failure to continue the temporary employment for which he was admitted constituted a failure to maintain status.

With the exception of H-1 or L nonimmigrants who are covered by section 212(h) of the Act, because an alien who is seeking a change of status and/or an extension of stay bears the burden of establishing eligibility for the benefit sought, if he or she has filed an application for adjustment of status or an application for asylum (or even if he or she is the beneficiary of a permanent or temporary visa petition, unless the applicant can establish that he or she is the unwilling or unknowing beneficiary) he o r she cannot meet this burden and the application for change of status or extension of stay should be denied. Contrast this issue with the discussion in Chapter 23 on whether an alien automatically violates his or her nonimmigrant status by merely applying for adjustment of status or asylum. However, under certain very limited circumstances, extension or change of status may be granted to an alien who (1) had previously been denied adjustment or asylum or whose previously approved visa petition has been wit hdrawn or revoked, (2) who met the criteria discussed in Chapter 23 for being considered as having maintained his or her status throughout the pendency of the asylum/adjustment application, and (3) is able to satisfy the officer adjudicating the application for change or extension that he or she has completely abandoned his or her intend to remain in the United States beyond the period which can be authorized under the change or extension being sought.

In addition, the applicant must demonstrate he or she is able to maintain him or herself in the status sought, particularly financially. This issue needs particular examination when the applicant seeks a prolonged stay in any status where employment is not a routine part of the status, for example student status. Maintenance of status is discussed in AFM Chapter 30.1 ; the accrual and the effects of unlawful presence pursuant to section 212(a)(9) of the Act are discussed in AFM Chapter 40.9.2 .

Note 2:

Preconceived Intent . The adjudicator will encounter applications where it appears, either from the statements made on the application or from the sequence of events (from initial visa application and issuance, admission, obtaining supporting documents for a new status, until the date of filing) that the applicant concealed his or her true purpose for entering the U.S., either on the visa application or to the inspector at the time of admission. Most frequently, this situation occurs in requests to change status from B-2 to F- 1. The issuance dates of Forms I-20, affidavits of support , etc. are often helpful in determining whether preconceived intent or actual fraud exists.

USCIS policy discourages such deliberate actions. In cases where the new status is one which requires substantial financial assets by the applicant or an overseas sponsor, the consular officer in the applicant’s home country is in a better position to assess the situation than a USCIS adjudicator. Similarly, where an applicant’s overseas employment or ties to his or her home country are at issue, again the consular officer on the scene can most easily assess eligibility.

Although the facts in such situations could be indicative of actual visa fraud, more often the appropriate course of action may be to deny the application as a matter of discretion. A denial would not be warranted simply because an applicant entered as a visitor, for example, and was later offered an opportunity to attend school, receive specialized training or accept employment. It is necessary to look closely at the facts of the particular case, examining such facts as dates on supporting documents. If ne cessary, seek additional information from the applicant concerning all facts leading to his or her request.

A series of precedent decisions and court cases uphold USCIS's decision to deny a change of status in such a situation. Matter of Hsu, 14 I&N Dec. 344 (R.C. 1973), denied a change of status to an applicant who obtained a visa under the pretext of a visit for business when the actual purpose was to seek acceptance at a school. In Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969), the Board ruled that even the applicant's claim that she was misinformed by a consular officer regarding the need for a student visa was insufficient to justify entry as a visitor. In Seihoon v. Levy, 408 F. Supp. 1208 (D. La. 1976), the court upheld the decision to deny an application to change status based on a finding that a rapid sequence of events leading to enrollment in a school is sufficient for a finding that the applicant had a preconceived intent to change nonimmigrant status and circumvent the normal visa issuance process.

Assuming other eligibility requirements are met, favorable consideration should be given to the cohabitating partner or other household member of a principal nonimmigrant visa holder when the cohabitating partner or other household member is applying for change to B-2 status for the duration of the principal nonimmigrant's stay. A "household member" of a principal nonimmigrant is an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

Note 3:

Applicant Is an Intending Immigrant . Matter of Gutierrez , 15 I&N Dec. 727 (R.C. 1976), denied a change of status to an alien who was determined to be an intending immigrant. However, it should be noted that not all nonimmigrants are required to maintain a foreign residence and that in some categories even overt evidence of intent to remain permanently in the United States is not a ground for denial of a change of status request. However, in the most commonly filed requests, those seeking F, J or M classification, before approving a case the adjudicator should be satisfied that the alien is not an intending immigrant.

Note 4:

Visas Mantis Cases . In adjudicating an application for change of status on behalf of an alien who was admitted under the Visas Mantis program, follow the same procedures as are set out for extension of stay applicants in Chapter 30.2(e) .

Note 5:

Inadmissibility Issues . At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and b een granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(4) Personal Interview .

Requiring a personal appearance by an applicant for a change of status should rarely be required and requests for additional evidence should likewise be relatively unusual. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. (If the case is being referred for an interview, prepare a memorandum explaining the reasons for the referral.) The application itself, supporting documentation required by the inst ructions on the form, and existing records will enable you to adjudicate virtually any extension of stay request. When an interview is conducted, a memorandum containing the results or notes summarizing the interview should be included in the record. If the interview was conducted at the request of a service center or another field office, that office should be notified of the findings.

(5) Indirect Attainment of a Prohibited Change of Status .

Chapter 30.3(b) describes limitations on certain nonimmigrant status changes. An applicant may not evade these restrictions by virtue of having attained an intermediate status. Matter of Kim , 13 I&N Dec. 316 (R.C. 1968), denied a change of status from A-2 to F-1 because the applicant was originally admitted as a J-1. Such a change would be an indirect change from exchange visitor to student, a prohibited action.

(6) Changes of Nonimmigrant Classification Formerly Permitted Without Application or Fee .

Prior to January 11, 1994, 8 CFR 248.3(c) specifically allowed certain changes without fee or application. Those changes included:

(A) A change to classification under section 101(a)(15)(A) or (G) of the Act;

(B) A change to classification under sections 101(a)(15)(A) or (G) of the Act for an immediate family member, as defined in 22 CFR 41.1, of a principal alien whose status has been changed to such a classification;

(C) A change to the appropriate classification for the nonimmigrant spouse or child of an alien whose status has been changed to a classification under sections 101(a)(15)(E), (F), (H), (I), (J), (L), or (M) of the Act;

(D) A change of classification from that of a visitor for pleasure under section 101(a)(15)(B) of the Act to that of a visitor for business under the same section;

(E) A change of classification from that of a student under section 101(a)(15)(F)(I) of the Act to that of an accompanying spouse or minor child under section 101(a)(15)(F)(ii) of the Act or vice versa;

(F) A change from any classification within section 101(a)(15)(H) of the Act to any other classification within section 101(a)(15)(H) of the Act provided that the requisite visa petition has been filed and approved;

(G) A change of classification from that of a participant under section 101(a)(15)(J) of the Act to classification as an accompanying spouse or minor child under that section or vice versa;

(H) A change of classification as an intra-company transferee under section 101(a)(15)(L) of the Act to classification as an accompanying spouse or minor child under that section or vice versa; and

(I) A change of classification from that of a student under section 101(a)(15)(M)(I) of the Act to that of an accompanying spouse or minor child under section 101(a)(15)(M)(ii) of the Act or vice versa.

The reason for discontinuing these provisions related to the need to eliminate circumstances whereby persons could change status without paying a fee (in effect transferring the USCIS' cost of doing business onto someone else), not with proscribing any of these actions. The types of changes for status listed above remain equally available to persons in such classifications today, provided that the person(s) involved file the application, pay the requisite fee, and are otherwise eligible. After Jan. 11, 1994, only those aliens described in (A) remain exempt fee.

Note:

It has been determined that 8 CFR 248.3(b) applies to the B-2 spouse or children of B-1 nonimmigrants. Therefore, if a B-1 nonimmigrant applies for and is granted an extension of temporary stay, the status of the spouse and children will be changed without fee or application. Upon this change of status, Forms I-94 must be endorsed "B-1 spouse" or "B-1 child".

(7) Change of Status within the J Classification .

8 CFR 248.2 prohibits a change from the J nonimmigrant classification for any individual who became a J in order to receive graduate medical training or who is subject to the 2-year residency requirement. However, this prohibition does not prevent someone (who is otherwise eligible) from seeking a change within the J category from J-1 to J-2, or vice versa. However, three important items should be noted regarding this type of change:

(A) Any alien(s) subject to the 2-year residency requirement retains that obligation despite the change from J-1 to J-2 or vice versa;

(B) The alien(s) involved may acquire a 2-year residency requirement which they did not have previously [e.g., a J-1 not subject to the requirement who becomes a J-2 accompanying spouse of someone who is subject acquires the same obligation as the (new) J-1 principal]; and

(C) Before approving any such change, the adjudicator should be satisfied that it is being requested for legitimate exchange visitor purposes and not merely to extend the stay in the United States by “flip-flopping” the roles of the principal alien and the accompanying spouse.

(8) Bonds .

A maintenance of status and departure bond, although seldom used, may be required as a condition for approval of an extension or change of status request. See Inspector’s Field Manual , Chapter 45, for procedures on posting bonds.

(9) Affidavits of Support .

See Chapter 30.8 of this manual.

(10) File Review .

When adjudicating an application for change of status, obtain and review any relating "A" file prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating "A" file may be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant's Form I-94 is noted "WAS" the file should not be requested, but the Wa shington, D.C. District Office should be consulted before an extension of stay is granted. In all cases in which an "A" file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(11) Case Closing Actions .

(A) Approval .

Complete the following steps when approving an application for change of status:

· Determine the appropriate amount of time for the extension of stay in the new visa classification. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.]

· Endorse the action block on the application and indicate the actions taken in the section of the form designated "for Government Use Only".

· For CLAIMS-processed cases, upon approval, update CLAIMS and order approval notices. The system will forward the record of approval to NIIS. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94 indicating the new status and extension date.

· If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the action taken (e.g. “c/s to F-1"), approval date, office three-letter code, and officer stamp number. Also, endorse the I-94 manually or using a rubber stamp, with the notation: “You must obtain a new visa to reenter this country in your present status.” In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the app lication and completion of an approval notice on Form I-542.

(B) Denial .

If denying the application for change of nonimmigrant status, complete the following steps:

· Endorse the action block on the application and indicate the actions taken in the section of the form designated "for Government Use Only".

· Using Form I-210, set a period of voluntary departure if the applicant is no longer maintaining status and he or she has agreed to accept voluntary departure.

· For denials processed in CLAIMS, select the proper standard denial paragraphs from CLAIMS, adding special text if necessary.

· In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial.

· In both CLAIMS and non-CLAIMS cases, prepare Form(s) I-530 and forward to NIIS -- Service Centers do not prepare I-530s on denials of I-129s ir I-539s.

(C) Routing of Miscellaneous Documents .

Returning the pink colored, USCIS annotated, IAP-66 with the I-94 is no longer the process. IAP-66 has been replaced by SEVIS generated DS-2019s. This is no longer a multiple copy form. Annotated original DS-2019 is returned to the applicant or attorney after approval of the COS. A photo copy of the annotated DS-2019 should go into the file. In the cas of the F-1 form I-20, the original endorsed I-20 is returned to the student or attorney, a photocopy of the annotated I-20 goes into the case file and n othing is sent to London, KY. SEVIS has eliminated STSC which is where the data from the copies of the I-20s were entered previous to SEVIS.

The yellow copy of the IAP-66 is sent to the Department of State, Bureau of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy (Form I-20AB) is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorney, in accordance with Appendix 15-8 of the Inspector’s Field Manual .

(12) Appeal .

There is no appeal from an adverse decision on Form I-539 filed for purposes of seeking a change of status.

(d) Form I-129 .

(1) Initial Receipting .

In order to receive a change of status to any category which requires an employer to submit a petition, the applicant must file Form I-129 with the service center having jurisdiction over his or her residence. The I-129 serves both as the employer’s petition and the nonimmigrant’s request for the new status. A single application may be filed by a family group, provided all family members hold the same status or derivative status and provided that there is no more than one principal alien on the petition. See general receipting instructions in Chapter 10. Editions of Form I-129 prior to the most current edition may not be accepted.

(2) Preliminary Screening .

Preliminary review of the application is performed by USCIS personnel. In addition to the general actions described in Chapter 10, preliminary review should include the following:

(A) Determine jurisdiction.

Jurisdiction is based on the location where the work is to be performed. Consult with supervisory personnel before accepting an application which does not appear to be submitted in the proper jurisdiction.

Note:

Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction. In cases involving temporary employment at more than one location, for more than one employer, or where there is an agent acting as a petitioner, jurisdiction is determined by the petitio ner’s address.

(B) Applicants must submit a copy of their I-94 .

Since the CLAIMS-generated approval notice, Form I-797A includes a replacement I-94, return any original I-94 which was improperly submitted. If there are multiple applicants on a single application, insure a copy of each I-94 is attached.

(C) Ensure the petition or application and appropriate schedule supporting the change of status is completely filled out and documented in accordance with the instructions on the form.

Other special supporting documents required for nonimmigrant classes are discussed in Chapters 31-35, relating to specific categories. There is a wide variety of supporting documents, such as labor certifications, advisory opinions and labor condition applications. An application for a change of status submitted without such required documentation is not considered properly filed, even if the fee was collected and a receipt issued.

(3) Adjudication .

Change of status applications are ordinarily fairly simple to adjudicate, once eligibility for any underlying petition has been established. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant. Although the petition and change of status are usually adjudicated simultaneously, they are actually two separate processes. This chapter will discuss only those requirements which relate to the change of status, not to the underlying petition. Petition requirements are discussed in Chapters 31-35. In addition to the steps described in Chapter 10.3 , the following actions are ordinarily required during the adjudicative process:

(A) First adjudicate the nonimmigrant petition .

If the petition is approvable, continue to the steps below. Once the underlying petition is denied and the denial is final (i.e., the appeal has been dismissed or the period for filing the appeal has expired with no appeal having been filed), the change of status application must also be denied.

(B) Determine if the application was timely filed .

Although ordinarily required, the adjudicator has discretion to grant a change of status based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way [such as by working in the U.S. for the petitioner – be especially alert for this if the alien has previously worked for the same employer in anoth er capacity (e.g., as an F-1 student on practical training)], whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings.

(C) Verify passport validity .

An applicant need not submit a valid passport with his or her application since Part 4 of the application contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the U.S.

(D) Ensure that co-applicant dependents remain entitled to dependent status .

However, a dependent’s ineligibility for change of status does not preclude approval of the principal’s application only.

(E) Because the alien applicant on Form I-129 will be gainfully employed once the new status is granted, it is generally not necessary to further explore an applicant’s ability to maintain status financially (unless the rate of remuneration is so low that the principal would be unable to support him/herself and all dependents). A rapid sequence of events between arrival and filing for a change of status may be indicative of the applicant’s attempt to avoid consular scrutiny of his or her prior employment. The credibility of evidence submitted to suppo rt prior employment experience should be explored as part of the petition adjudication, rather than in the context of the change of status request.

(F) Determine if a Favorable Exercise of Discretion Is Warranted .

Change of status applications are discretionary in nature. Many of the discretionary considerations present when considering a change of status to a student or visitor are either inapplicable or of considerably less weight when adjudicating a case where the alien is seeking an employment-related status. However, you should still consider whether there was possible deception when the original visa or admission was sought, what the applicant’s ultimate intentions may be, veracity of documentation submitted, a nd the overall effects of a positive or negative decision. It is important to keep in mind that discretionary does not mean arbitrary. Given similar fact patterns, discretionary decisions should yield similar results regardless of where such cases are adjudicated or by whom. There is a significant body of precedent decisions which discuss the appropriate exercise of discretion under a variety of situations. Familiarity and conformity with these precedents is critical to achieving consistent and fair results in such cases.

Note:

Visas Mantis Cases . In adjudicating an application for change of status on behalf of an alien who was admitted under the Visas Mantis program, follow the same procedures as are set out for extension of stay applicants in Chapter 30.2(e) .

(4) Interview .

Requiring a personal appearance by an applicant for a change of status should rarely be required and requests for additional evidence should likewise be relatively unusual, once the underlying visa petition has been adjudicated. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. Care must be exercised when requesting additional evidence to support a petition that the request is complete enough to insu re the adjudicator’s ability to complete action on both the petition and change of status request.

(5) Unauthorized Employment .

An alien who engages in employment which is inconsistent with his or her current status is ineligible to change status [ Matter of Kyriakarakos , 10 I&N Dec. 646 (R.C. 1963)]. Often, an alien seeking a change from a non-employment authorized classification to one which permits employment (e.g., H, L or E) will indicate that he or she intends to commence employment on a specific date. If that date has passed, and the alien has begun employment without the change of status having been approved, the alien is in violation of status,. Occasionally, such changes of status are granted without the adjudicating officer knowing that the alien commenced work prior to the approval. If such unauthorized employment comes to the attention of USCIS , USCIS may initiate a motion to reopen the case and deny the change of status decision. Likewise, if at some point in the future the alien applies for adjustment of status, he or she is subject to the provisions of section 245(c) of the Act.

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(6) File Review .

In adjudicating a change of status request, a relating "A" file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating "A" file may be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant's Form I-94 is noted "ARL" the file should not be requested, but the Ar lington, VA. District Office should be consulted before an extension of stay is granted. In all cases in which an "A" file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(7) Case Closing Actions .

(A) Approval .

If the application for change of nonimmigrant status is being approved, complete the following steps:

· Determine the appropriate amount of time for the extension of stay in the new visa classification. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.]

· Endorse the action block on the application and indicate the actions taken in the section of the form designated for "Government Use Only".

· For CLAIMS-processed cases, upon approval, update CLAIMS and order approval notices. The system will forward the record of approval to NIIS. The CLAIMS approval notice, Form I-797A , contains a tear-off section which serves as a replacement Form I-94 indicating the new status and extension date.

· If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the action taken (e.g. “c/s to L-1"), approval date, office three-letter code, and officer stamp number. Also, endorse the I-94 manually or using a rubber stamp, with the notation: “You must obtain a new visa to reenter the U.S. in you present status.” In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the applicati on and completion of an approval notice on Form I-171C.

(B) Denial .

If the application for change of nonimmigrant status is being denied, complete the following steps:

· Endorse the action block on the application and indicate the actions taken in the section of the form designated for "Government Use Only".

· Using Form I-210, set a period of voluntary departure if the applicant is no longer maintaining status and he or she has agreed to accept voluntary departure.

· For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text if necessary.

· In non-CLAIMS cases prepare Form I-541 to advise the applicant of the reasons for denial.

· In both CLAIMS and non-CLAIMS cases, prepare Forms I-530 for each applicant and forward to NIIS --Service Centers do not prepare I-530s on denials of I-129s or I-539s.

(8) Appeal .

There is no appeal from an adverse decision the nonimmigrant’s request for change of status filed on Form I-129 . However, an adverse decision on the employer’s petition may be appealed to the Administrative Appeals Office.