Chapter 4 - Extension of Stay, Change of Status, and Extension of Petition Validity
Generally, certain nonimmigrants present in the United States admitted for a specified period of time, or their petitioners, may request an extension of their admission period in order to continue to engage in those activities permitted under the nonimmigrant classification in which they were admitted.
Also, certain nonimmigrants present in the United States or their petitioners may seek to change their status to another nonimmigrant classification if certain requirements are met.
A request for an extension of stay (EOS) or change of status (COS) is generally filed on a Petition for a Nonimmigrant Worker (Form I-129) or Application to Extend/Change Nonimmigrant Status (Form I-539), depending upon the nonimmigrant classification the petitioner or applicant seeks to extend or change.
Deference to Previous Approvals
A request for an extension of petition validity, which is often submitted in conjunction with an EOS request, follows a previous finding of eligibility for the classification. Typically, these determinations are made by USCIS, although U.S. Customs and Border Protection (CBP) and U.S. Department of State (DOS) also make these determinations. Although there is a previous finding of eligibility, the burden of proof in the request for an extension of petition validity remains on the petitioner.
Officers are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated strictly because of a prior approval (which may have been erroneous). USCIS decides each matter according to the evidence of record on a case-by-case basis. However, deviation from a previous approval carries important consequences and implicates predictability and consistency concerns.
As such, any deviation requires close consideration of the previous approval by USCIS. When adjudicating a subsequent petition or application involving the same parties (for example, petitioner and beneficiary) and the same underlying facts, officers should defer to a prior determination that the beneficiary or applicant is eligible for the nonimmigrant classification sought, where appropriate.
Deviating from Previous Approvals
Officers should not defer to prior approvals in cases where:
There was a material error involved with previous approval(s);
There has been a material change in circumstances or eligibility requirements; or
There is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.
An officer who determines that deference to a prior approval is not appropriate must acknowledge the previous approval(s) in the denial, Request for Evidence (RFE), or Notice of Intent to Deny (NOID). In addition, the officer must articulate the reason for not deferring to the previous determination (for example, due to a material error, change in circumstances, or new adverse material information). Officers must provide the petitioner or applicant an opportunity to respond to the new information.
As mentioned above, an officer should not defer to a prior approval where new material information is available. This may include publicly available information that affects eligibility for a benefit. For example, an officer may be aware that a petitioner has recently gone out of business. This also includes information that affects national security or public safety garnered from security checks conducted on beneficiaries and petitioners. An officer should not defer to a prior approval when there are indicators of potential fraud or willful misrepresentation of a material fact. The officer must articulate the new material information in an RFE or NOID.
In all cases, officers must obtain supervisory approval before deviating from a prior approval in their final decision.
USCIS officers consider, but do not defer to, previous eligibility determinations on petitions or applications made by CBP or DOS. Officers make determinations on the petition filed with USCIS and corresponding evidence on record, as provided above.
Officers may, when warranted, deny an applicant or petitioner’s request to extend the nonimmigrant’s stay in the United States in the same classification. Even if an applicant or petitioner continues to demonstrate eligibility for the nonimmigrant classification, an officer may determine that sufficient reason exists to deny the request for an extension of stay (such as inadmissibility factors or failure to maintain status).
This “split” decision process may result in approval of the petition for the same classification where the petitioner and the beneficiary relationship has not changed, and a simultaneous denial of the extension of stay request.
[^ 4] The instructions for Form I-539 and Form I-129 provide detailed information regarding who may file each form. Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A) or Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW) may also be filed where applicable.
[^ 8] This includes situations in which the regulations require criteria to be met after approval, such as the nonimmigrant treaty investor (E) classification at 8 CFR 214.2(e)(2)(i) (petitioner must be actively in the process of investing a substantial amount of capital in a bona fide enterprise), and the nonimmigrant intracompany transferee (L) classification at 8 CFR 214.2(l)(3)(v)(C) (a new office has 1 year from the date of the initial approval to support an executive or managerial position).
[^ 9] A fact is material if it would have a natural tendency to influence or is predictably capable of affecting the decision. See Kungys v. United States, 485 U.S. 759, 770-72 (1988). See Matter of D-R- (PDF), 25 I&N Dec. 445, 450 (BIA 2011).
[^ 11] For example, L-1, TN, E-1, E-2, and H-1B1 eligibility determinations.