Change of Status

To change an alien from another nonimmigrant status to any O or P status (and request an extension of stay in the new status), the petitioner should submit an I-129 petition with supporting documentation organized for an original O or P petition. The only difference is that, because the alien(s) by definition already is in the U.S. in another status, the petitioner must establish that the alien(s) is lawfully in the U.S. in a status that permits a change of status. Accordingly, just behind any consultations, include a copy of the front and back of the I-94 for each alien involved, a copy of the alien's current visa, and, if available, a copy of the prior I-797 approval notice, as well as a copy of the passport biographical data page. Also, the petitioner's letter should explain the reasons for the requested change of status to make clear that the original entry in the current status was appropriate at the time but that circumstances now warrant a change of status.

USCIS permits O and P aliens to enter the U.S. up to ten days before the classification period starts and to remain in the U.S. for up to ten days after the classification period ends, provided they do not work during these times. Artists seeking to remain in the United States as a tourist for more than 10 days after the O or P visa work period ends must apply for a change in status to a B-2 visa. To do this, after arriving in the U.S. the artist must complete and file an I-539 petition before the period on the original I-94 card expires.  Note that I-539 petitions may not be filed using the Premium Processing Service.  Due to the lengthy processing times for I-539 petitions (up to six months), it is likely that the petition will not be processed until after the artist’s planned departure date.  The artist should keep a copy of the USCIS-issued I-797 receipt notice for the I-539 as proof of timely filing for a change in status.

Important note:  All petitions to change status must be filed before the alien's original status expires, as noted on the I-94. That the visa and/or underlying approved classification period may last longer than the I-94 is irrelevant!  If CIS approves the change of status, it will issue an I-797 that includes a substitute I-94, incorporated into a tear-off portion in the lower right corner, and update the information in the online I-94 database.  After making a copy of the entire document, the alien should staple this substitute I-94 to their passport and surrender it on departure, if requested.  However, given the recent automation of the I-94 process, it is unlikely that the hard copy will be requested on departure.

Nonetheless, once the alien departs the U.S., the validity period of the I-94 is itself irrelevant!  To re-enter the U.S. in the new status, the alien must first obtain a new visa (unless the alien is a Canadian citizen or seeks re-entry to the U.S. under the exception discussed in the past paragraph of Inspections and Entry at POEs and PFIs).

Update: In light of a June 28, 2018 USCIS policy memorandum, there is now a risk that if the petition for a change in status with an extension of stay is denied and the artist is determined to be not lawfully present in the U.S, the beneficiary will be issued a notice to appear before an immigration judge and face possible deportation. It is essential that petitioners file any change of status with extension of stay request long before the beneficiary’s current status is set to expire or otherwise advise the artist to depart the U.S. at the conclusion of the current visa period, then file a new petition for new work in the new status.

Further Update 7/31/18: USCIS has announced that it is postponing implementation of its policy memorandum about notices to appear (NTA), pending issuance of operational guidance. It is likely that the policy will be reinstated once USCIS finalizes its guidance, so petitioners and beneficiaries should continue to exercise caution and file any extension of stay or change of status requests well in advance. 

NEXT