A nonimmigrant may request and be granted an extension of stay in the United States by the USCIS. However, the extension is subject to requirements and circumstances, and the decision may differ from case to case. To extend the stay as a nonimmigrant worker in the US, one must file form I-539 for oneself and all the dependents, whereas their employer (if they sponsor the nonimmigrant visa) must file Form I-129.
Form I-539 is submitted before the current authorized stay expires as it bridges the gap that may arise between the expiration of current status and validity of future status. It is advisable to file the form at least 45 days before the expiry of the current status. Suppose you file your extension petition a few days before the expiry of your visa status. In that case, your status will likely expire before the decision of your extension petition is made, and you have to leave the United States.
What is Form I-539?
I-539 is an application to Extend/Change Nonimmigrant Status. It can be used by:
- Individuals changing their current nonimmigrant status to another nonimmigrant status
- Nonimmigrant extending their stay
- CNMI applying for an initial grant of status
- F and M nonimmigrants applying for reinstatement
- An applicant seeking the status of or extension of stay as a V nonimmigrant
The applicants majorly use this form to change or extend their nonimmigrant status.
You are required to complete the following details in the form:
In Part 1, information such as the family name, mailing address, date of birth, and current nonimmigrant status
Part 2 deals with the application type and has questions relating to the subject of the application, the status requested by the applicant, and the total number of people included in the application.
Other details which need to be completed can be found on the form. The applicant needs to submit the latest version of the Form, which can be found on the website of USCIS, and the applicant can set up an appointment through the website.
While filling your I-539 form, make sure to submit the following documents:
- Copy of valid passport
- Copy of passport identification page
- Form I-539
- Copy of Form 1-94 (Arrival-Departure Record) for every applicant
- Copy of current visa
- Applicant’s Statement
- Contact information
- Declaration of any other evidence to prove your lawful status while in the US before submitting the present application for change of status
- Receipt of the filing fee
Note that the applicant may be required to provide additional evidence based on the type of the current status and the requested status.
Processing of an I-539 application
- The USCIS will check the completeness of the application form.
- USCIS may request more information or evidence to support your application.
- An interview may be held at a USCIS office (if USCIS requires more information from the applicant) based on the application where the applicant may be required to provide for the biometrics to verify the identity and/or update background and security checks.
- The applicant will be notified of the decision in writing.
The processing of the I-539 application generally ranges from a few weeks to over a year. You can check the processing time on the official website of USCIS.
The filing fee for an I-539 form is $370. Apart from the filing fees, the applicant may be required to pay $85 for the biometric services for every applicant. Note that fees paid are non-refundable regardless of any action on the application.
There are certain exceptions to the fees:
- There is no need to submit the filing fee or the biometric fee if the applicant is changing in or out of A-1, A-2, A-3, G-1, G-2, G-3, G-4, G-5, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 status.
- Biometric services need not be paid if the applicant changes or extends their H-4, L-2, E-1, E-2, E-2C, E-3, or E-3D nonimmigrant status.
Are there any exceptions if I fail to file an I-539 petition before my current status expires?
In case the applicant fails to apply before your current status expires, the applicant may be excused if the applicant proves the following:
- The delay was due to inevitable extraordinary circumstances.
- Reasonable length of delay
- The applicant is a bona fide nonimmigrant
- No removal proceedings against the applicant are pending
- There has been no violation of status by the applicant
What happens if you leave before your extension is approved?
Suppose the applicant leaves the US before a decision is made on their application to extend and they plan to return to the US in the future, the applicant must keep a copy of their application in addition to the receipt notice to show to the Immigration Inspector on their return travel to the US. Otherwise, the applicant may be denied entry for overstaying on your last visit.
Generally, suppose the applicant is abroad while the application is pending. In that case, the USCIS deems the application as abandoned, and the application will be rejected. You will then have to visit the US Embassy to apply for a new visa to re-enter. It is not advisable to leave the US while your I-539 petition is pending, but if you have an emergency make sure to consult an immigration attorney to guide you.
Your doubts related to the I-539 application must be resolved. However, if you still have queries or want to discuss your immigration case, make sure to message us. Immigration Attorneys at Sethi and Mazaheri law firm do their best to help as many people as possible in their travel to the US.