Chapter 4 - Extension of Stay, Change of Status, and Extension of Petition Validity

A. Extension of Stay or Change of Status

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.[1]

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.[2]

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),[3] depending upon the nonimmigrant classification the petitioner or applicant seeks to extend or change.[4]

B. Extension of Petition Validity

1. Significance of Prior USCIS Approvals and Deference

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.[5]

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).[6] USCIS decides each matter according to the evidence of record on a case-by-case basis.[7] 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;[8] or

  • There is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.[9]

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.[10]

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.

2. Cases Involving Previous Determinations by Other Agencies

USCIS officers consider, but do not defer to, previous eligibility determinations on petitions or applications made by CBP or DOS.[11] Officers make determinations on the petition filed with USCIS and corresponding evidence on record, as provided above.

C. Split Decisions in Extension Requests

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.[12] 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.

Footnotes


[^ 1] See 8 CFR 214.1(a). See 8 CFR 214.1(c) for general requirements, such as those relating to passport validity and waivers of inadmissibility for an EOS. 

[^ 2] See INA 248. See 8 CFR 248.

[^ 3] See 8 CFR 214.1(c). The application should be filed in accordance with the form instructions.

[^ 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.

[^ 5] See INA 291. See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 6] See Matter of Church Scientology International (PDF), 19 I&N Dec. 593, 597 (Comm. 1988).

[^ 7] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 2, Record of Proceeding [1 USCIS-PM E.2] for information on what constitutes a record of proceeding.

[^ 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).

[^ 10] See 8 CFR 103.2(b)(16)(i).

[^ 11] For example, L-1, TN, E-1, E-2, and H-1B1 eligibility determinations.

[^ 12] See 8 CFR 214.1(c)(5).

Appendices

Appendix: Historical Public Charge Guidance

Volume 2: Nonimmigrants, Part A, Nonimmigrant Policies and Procedures

Volume 8: Admissibility, Part G, Public Charge Ground of Inadmissibility

Volume 12: Citizenship and Naturalization, Part D, General Naturalization Requirements

Appendix: Summary of Nonimmigrant Categories and Eligibility to Apply for Extension of Stay and Change of Status

Updates

Technical Update - Replacing the Term “Alien”

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

POLICY ALERT - Deference to Prior Determinations of Eligibility in Requests for Extensions of Petition Validity

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the issue of deference to prior determinations of eligibility by an officer when adjudicating a request for an extension of petition validity.

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Technical Update - Removing Guidance on Inadmissibility on Public Charge Grounds

This technical update removes the guidance in Volume 2, Part A, Chapter 4, Volume 8, Part G, and Volume 12, Part D, Chapter 2 relating to the administration of the public charge ground of inadmissibility under the Inadmissibility on Public Charge Grounds final rule, 84 FR 41292 (Aug. 14, 2019); as amended by Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 (Oct. 2, 2019) ( “Public Charge Final Rule”), which was implemented on Feb. 24, 2020. On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. On Nov. 3, 2020, the U.S. Court of Appeals for the Seventh Circuit issued an administrative stay and, on Nov. 19, 2020, a stay pending appeal of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted its stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage.

POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule

U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. This guidance becomes effective October 2, 2020. For information regarding implementation, see Appendix: 2020 Fee Rule Litigation Summary.

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Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 327.05 KB) between the AFM and the Policy Manual.

POLICY ALERT - Implementation of Guidance on Inadmissibility on Public Charge Grounds

Note: On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. The U.S. Court of Appeals for the Seventh Circuit later issued a stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted the stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage. The alert text below and related guidance are no longer in effect.

This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of [noncitizens] who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see our page on the injunction.

Read More
POLICY ALERT - Public Charge Ground of Inadmissibility

Note: On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. The U.S. Court of Appeals for the Seventh Circuit later issued a stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted the stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage. The alert text below and related guidance are no longer in effect.

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1 (PDF, 77.92 KB). For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of [noncitizens] who are exempt from the final rule, see the appendices related to applicability.

Read More
Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].