If you are residing in the U.S. on a nonimmigrant status you may be able to change your status to another nonimmigrant or immigrant category pursuant to INA Sec.248, 8 U.S.C. Sec.1258. For example, a B1 business visitor may need to stay in the U.S. longer in order to help his foreign employer establish a U.S. branch office. In this case, if the foreign national is to be paid out of the U.S. office, he will need to change his status to a work authorized category, such as L1A or L1B category.
If a change of status is sought, be aware that such an application can raise questions about the intention of the nonimmigrant at the time of his application for a visa or at the time he sought admission at a U.S. port of entry. This “intent issue” is particularly important to B1 and B2 visitors, because most B1 and/or B2 trips are relatively short in duration. A quick application for a change of status could arouse suspicions that the visitor had the intention at the time of his admission to the U.S. to engage in activity for which the change of status is currently being sought. Such intention would be a violation of the terms under which the visitor was originally issued the visa and admitted to the U.S., and could lead to a denial of the change-of-status application.
Although most nonimmigrants are allowed to change their status from within the U.S., certain categories of nonimmigrants are not eligible to change their status. For example, nonimmigrants in C (transit), D (crewmen), S (informant) and K1 (fiancee’) categories cannot change their status to another nonimmigrant category inside the U.S. J (exchange student) status holders may be subject to a two-year foreign residency requirement. Thus, most J status holders are only eligible to change their status if they are not subject to a two-year home residency requirement or obtain a “waiver” from having to comply with this requirement. A limited exception to the above rule applies towards J – foreign medical graduates.
Departure from the U.S. during pendency of an application for change of status constitutes abandonment. Departure can also result in a problem regarding cancellation of the foreign national’s current visa if he is out of status at the time of departure.
Persons who are out of status at the time of filing the change of status application must apply for a nonimmigrant visa abroad. Furthermore, if the foreign national “overstayed” his period of authorized admission, he will be required to submit his visa application at the consulate located in the country of his nationality. According to the overstay provisions of the 1996 Immigration and Nationality Act, a third country consulate will not process the visa application unless the foreign national can establish that “extraordinary circumstances”.
Please note that persons who have been in unlawful status for significant periods of time (181 days or more) may be subject to the new inadmissibility grounds upon departure from the U.S. These people are ineligible for nonimmigrant or immigrant visa issuance for three or ten years, depending on the length of unlawful presence. Due to the serious consequences of this new law, it is best to consult with an immigration attorney before departing from the U.S.