Extension of Stay
USCIS may grant extensions of stay, in the same status and filed by the same petitioner as before, in all O and P categories for up to one year at a time.
The rules pertaining to extensions of stay are complex, though logical:
- Extensions, by definition, may be filed only if the alien is in the U.S. at time of filing. If the alien is not in the U.S., simply file a new petition to obtain a new classification period.
- For performers and support personnel, use the I-129 petition, checking off Box 4c at Part 2 of the form.
- For spouses and dependents of performers and support personnel, use the I-539 application.
- Filing for an extension enables the beneficiary to remain lawfully in the U.S. beyond the initial I-94 date, until USCIS grants the extension. The beneficiary may continue to work while the petition is pending, but only if the extension is filed by the same petitioner as before, and the services are similar to those described in the preceding petition and on behalf of that petitioner. Otherwise, while the beneficiary may remain lawfully in the U.S., s/he cannot work until USCIS grants the new petition.
- If the beneficiary leaves the U.S. and seeks to return before USCIS grants the extension s/he must either have remaining validity on the existing visa or plan to get a new one.
- If the beneficiary re-enters on the strength of the existing visa before USCIS grants the extension, s/he will be admitted only until the old visa expires.
- If the beneficiary re-enters on the strength of the existing visa, but USCIS has granted the extension, generally speaking CBP will admit the beneficiary for the remaining validity of the preceding classification period plus the new validity period (it is best for the beneficiary to have the new original I-797 notice in this case, but should not be essential, given that CBP inspectors can readily check to see whether the extension is approved). Obviously, the beneficiary should try to obtain the new visa instead of relying on CBP to tack on the new classification period.
- An alien who, in desperation, re-enters the U.S. in a different classification than the one sought in the extension filing, has a problem. Even if USCIS grants the extension, it will be of NO benefit as such, because it will not confer a new status on that alien. Rather, it will be treated by law as any new petition pertaining to an alien abroad. Therefore, the alien will either have to depart the U.S., obtain the appropriate visa (if needed) and again re-enter, or the petitioner again will have to file, this time a petition to change the alien’s status to the proper one, and to extend that alien’s stay. Simply pretending that the new I-94 trumps the alien’s admission in another status risks causing the alien to overstay, with all the attendant bad consequences.
- During the pendency of any petition to change status, the alien cannot work in the desired status.
- The I-797 approval notice for the extension petition and any accompanying I-539 will include, in the lower right-hand corner, a replacement I-94 showing the new classification period. As of April 30, 2013, I-94 cards will be available online. The I-797 will be mailed to the petitioner, so there is no need for the artist to visit a U.S. consulate to pick up new documentation. In practice, it is best for petitioners to print the new I-94, then give a copy to the artist.
Even if the artist is already in the U.S. in O-1B status, you are not confined to filing a simple extension of stay for one year. While this approach is less work because less documentation normally is required, the O-1B petitioner can at least try to file a new, fully documented petition for a new three-year period, based on a new contract, a fresh itinerary, and the like. There are no express limits on how long an alien may remain in the U.S. in O or P status (with the proper extensions or re-filings), but USCIS at some point may raise the issue, particularly with respect to P status.
For extensions of stay involving O and P petitions, the following should suffice: I-129 and Supplement with proper fee, copy of front and back of all I-94s, copy of the original I-797 approval notice, copy of original labor consultation (no new one is needed), beneficiary list (if any), passport biographical data page(s) and petitioner's letter explaining the basis for the request. The letter should state that the nature of the underlying activities and services are the same, but that additional dates (and venues) have been added. Any new contracts and a new itinerary should be included. However, given a recent policy memorandum by USCIS that rescinds a prior policy that required officers to defer to prior determinations in petitions for extension of nonimmigrant status, it is strongly advised that petitioners be sure to attach a full copy of the prior petition as well as any additional evidence that strengthens the beneficiary’s eligibility.
If a new petitioner is involved, the petition should be submitted in the form, order, and content (including labor consultations) of new petitions, though the action requested on the I-129 form will be different.
Important Note: All petitions to extend stay must be filed before the alien's original stay 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! Also, if the alien leaves the U.S. before CIS grants the extension s/he may be readmitted in the same classification as before provided the old visa remains valid. Once that visa expires, however, the alien must obtain a new one before seeking to re-enter the U.S. in the desired classification, meaning the alien must await USCIS approval of the pending petition. The same concept applies to Canadian citizens, except that they do not require visas.