When you enter the US as a non-immigrant you are allowed to extend your authorized stay under certain conditions for certain categories of non-immigrant visas. The petition (form I-539) which is associated with the extension of visa status should be filed before the expiration of your current status. It is recommended to apply for the petition at least 45 days prior to the expiration date and make sure USCIS receives the petition before it expires. Another important requirement of this filing is that you should have maintained your current non-immigrant status and not violated any terms during your stay in the USA. However, even then the grant of this extension depends on the powers to be at the USCIS and even if all the requirements are met, your petition to extend your stay in the USA can still be denied.
Processing time can vary. If you have not submitted your petition, you can estimate the processing time by going to: https://egov.uscis.gov/. If you have already submitted your petition and have a case number, you can also check via this site: https://egov.uscis.gov/.
Which nonimmigrants are eligible to apply to extend their stay in the USA?
When you are seeking to enter the USA on a non-immigrant visa, you usually complete a Form I-94/ Form I-94W (Arrival–Departure Record) en route to the US. This I-94 is usually stamped by the immigration officer with date stamp on your arrival in the USA. This date stamp indicates the maximum permissible period of stay that is available to you. (Although I-94 is in transitional stage and is on its way to extinction as the ESTA system is being implemented everywhere.)
However if you were lawfully admitted to the USA with your non-immigrant visa and you have not violated any terms of this visa which is still valid, then you can apply to extend it. You must apply to extend your stay before your current authorized stay expires. You also have to have a valid passport for your entire stay in the US. However you cannot apply to extend your stay if you were admitted for a 90 day stay under the Visa Waiver Program (VWP).
If you enter the US on a visitor visa, the non-immigrant visa category B1 or B2 then you usually get a stay allowance of 6 months. This can be extended for a further 6 months by filing form I-539 with your local USCIS office. However you should not apply for an extension of your stay within three months of your arrival in the US or the immigration authorities will think that you intended to extend your visa all along. The maximum stay in the US allowed on a B1/B2 visa is one year. Along with application of extension of stay in the US you must send a photocopy of your original I-94, a copy of your air ticket and proof of financial support which is to fund your stay in the USA. Even if you meet all these requirements and have sent all these documents to your local USCIS office there is still a chance that your application for extension may be denied. If that happens and your original I-94 expires then you have no option but to depart from the USA as this visa category has no grace period. If, however, your application for extension is approved you will receive a new 1-94 with your approval and when you finally leave the country you have to submit both 1-94 cards to the authorities.
Extension of Stay for Work Visa Holders
If you have a non-immigrant visa which has been issued under the following categories you yourself cannot apply for an extension yourself, rather your employer has to file for extension of your immigrant visa by submitting a form I-129 accompanied by a Form I- 539 and the appropriate fees to the USCIS Service Center that serves the area where you work. If, at this time, your dependents (spouse and unmarried children under the age of 21) also need to extend their stay, they can all be included on one I-539 form. Once the visa extension has been approved by the USCIS, the petitioner will be notified of this approval via a form I-797.
- E – International Traders and Investors
- H – Temporary Workers
- L – Intracompany Transferees
- O – Aliens of Extraordinary Ability
- P – Entertainers and Athletes
- Q – Participants in International Exchange Programs
Once the USCIS receives your application and if your status has not expired and if you have not violated the terms of your status and continue to meet basic eligibility requirements you can continue to perform your previously authorized activities in the USA for a maximum period of 240 days. If, however, the application for extension is denied after your previously approved status has expired, you are immediately considered to be ‘out of status’. Once this happens you are required to leave the USA immediately as the non-immigrant visa which is in your passport immediately becomes void. You then have to return to your home country and reapply for a new visa.
Extensions for the L visa should be filed at least six months before the period of expiration of current stay. Extensions on the L visa status are usually granted in two year increments and the maximum period of extension for special knowledge employees (L-1B) is five years while for managers and executives (L-1A) it is seven years.
Similarly an H1B visa is normally issued for three years. This H1B may be extended for another three years. If the H1B visa holder never leaves the US during the six year period, a new visa stamp is not required in the passport. If the H1B needs to travel internationally after the expiration of the original H1B visa, however, the worker needs to have a new H1 visa on the his/her passport and this new issuing of the H1B visa can only be done at a consulate abroad preferably at the consulate which originally issued the H1B visa. The process is similar of all work visas and once the petition is filed and approved you have to go back to your home country to get a new (renewed) visa.
If you are a holder of the following categories of non-immigrant visas you can file a USCIS Form I-539 (Application to Extend/Change Non-immigrant Status) yourself with any supporting documents.
- F – Academic Students and their families
- J – Exchange Visitors and their families
- M – Vocational Students and their families
If you are filing the USCIS Form I-539 for your own visa extension then you can also include your spouse and any unmarried children under the age of 21 in your application if you are all in the same non-immigrant category and their visa status is a derivative of your category (F2, J2, and M2).
The application and correct fee should be mailed to the USCIS Service Center that serves the area where you are temporarily staying. The appropriate forms can be obtained by calling 1-800-870-3676. Do visit the USCIS website ( http://www.uscis.gov/) for more information about fees, fee waiver requests and more.
To find the appropriate USCIS office, visit this page.
If you are late in filing for your extension and your authorized stay has expired you have to prove:
- The delay was due to extraordinary circumstances that were beyond your control.
- The length of delay was reasonable.
- You have not violated your non-immigrant status in anyway.
- You are still a non-immigrant and are not trying to become a permanent resident of the US. (There as some exceptions under the H & L categories of visa).
- You are not in formal proceeding to remove you from the country.
If your application is denied for any reason you are also allowed to appeal to higher authority for a review of your case.