Extensions or Change of Status Inside the U.S.

By Tamar Klarfeld

My office, as a rule, does not handle applications for extensions of B2 visas for the simple reason that after remaining in the U.S. for more than a month on a B2 visa, a person is often already subject to heightened scrutiny at most Ports of Entry.  Often the Applicant is denied entry at the Border and subject to Expedited Removal as well a 5 year bar to reentry (to add insult to injury) – depending on a number of factors, including previous travel history.

Once a visitor spends longer periods of time in the U.S. (legally or not) – and often in the case of young people with no strong ties to their home country – the State Department may notify the various U.S. Consulates abroad. Thereafter, the Consulate may or may not contact the person on their return home to inform them that their visa has been revoked.  In many cases, once this occurs, the likelihood of obtaining a new visa is very low – even 8-10 years later or longer – regardless of whether the Applicant has since married, studied, and is working at the time of Application.  Just about the only exceptions I find to the above are Applicants with very strong and obvious ties to their home country such as  some Hi Tech industry employees, or very successful artists, academicians, or business people.  Even in the latter case it is not a given that those Applicants will overcome the presumption of  immigrant intent or suspicion that they will otherwise breach the terms of their visa after entering the U.S.

I believe that requesting an extension under the circumstances described above seriously jeopardizes the visa and status of the Visitor in the U.S.  Furthermore, such requests are likely to impair an Applicant’s ability to renew a B1/B2 visitor visa or obtain a visa in a different nonimmigrant category later on.  Consequently, this office does not handle extension cases of B2 entry permits in the U.S.  Neither do we handle change of status of non-immigrant status categories within the U.S. for the same reasons.  In many cases, once a visitor changes status within the U.S., he or she runs a serious risk of not being issued the visa for that category at a consulate outside of the U.S.  This is a much broader subject, however, and the particular circumstances of the individual case will determine whether the Consul Approves or Denies the visa request for the new category upon their return.  The unfortunate consequence of a Denial may be compounded by the fact that once a visa application is denied in one category the Consul will, in many cases, cancel the currently valid B1/B2 visa in the Applicant’s passport.  Such consequence leaves the Visa Applicant with very few (if any) options to reenter the U.S. thereafter – possibly for many, many years.

Furthermore, extension or change of status requests from within the U.S. are often denied – even after the Applicant has already departed the U.S. – many times triggering an Overstay that may or may not lead to a 3 or 10 year bar to reentry.

It is untrue that an Applicant is “legal” the entire period of waiting for a reply to an Extension or Change of Status Request from the USCIS.  Generally, the only time a visitor’s stay is considered legal after the required departure date is if an Application for Extension or Change of Status is approved retroactively and the Applicant departs before the new required departure date.  However, even in this latter case, the Applicant should beware of other possible consequences described in the beginning of this article.  As noted, the simple fact that a B2 visitor remained for a long period of time in the U.S. or requested a change of status, will already send up flags when applying for reentry to the U.S. or applying for a visa at a U.S. Consulate abroad.

Visitors to the U.S. would be wise to heed the terms of their visas and entry permits, and depart the country in a timely manner after brief visits.  One should consult an Immigration Attorney for more appropriate visa categories, if available, and whenever possible, apply to USCIS to have a visa issued at a Consulate abroad (in lieu of change of status), when interested in working or remaining for extended periods of time in the U.S.  Of course, Petitioning for status or Applying for a visa does not guarantee and Approval, whether from USCIS or a U.S. Consulate abroad.

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