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.
- UPDATED: 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. In light of a June 28, 2018 USCIS policy memorandum, there is now a risk that if the petition for extension 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 (NTA) before an immigration judge and face possible deportation. It is essential that petitioners file any 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 and undergo the usual process as if engaging the artist for the first time. Given the risk of being issued an NTA if an extension request is denied, it is not advisable for guest artists to engage in performance activities (regardless of compensation) in the U.S. after the original visa classification expires and new visa approval is still pending.
- 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.
- 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, it is advisable to include a full petition package following a USCIS memorandum that rescinded a prior policy that required officers to defer to prior determinations in petitions for extension of nonimmigrant status: 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), petitioner's letter explaining the basis for the request, and all supporting documentation from the original petition, with new material as available. The petitioner 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.
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. (For Part 2 Question 2 – basis for classification, select A for new employment; for Question 4 - requested action, select C to extend the stay).
Important Note: All petitions to extend stay must be filed well 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.