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I received a waiver for my current nonimmigrant visa. Can I enter the U.S. and change or extend my status?

By November 22, 2023Family Immigration
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In order to obtain a visa to enter the U.S., the applicant must be admissible. There are several grounds of inadmissibility outlined in U.S. immigration law, such as health-related grounds, fraud & willful misrepresentation, unlawful presence and criminal grounds among others. For example, if you have committed a crime of moral turpitude and you are not eligible for an exception, you could be found inadmissible to the U.S. If a foreign national is inadmissible to the U.S. and still wants to visit or work in the U.S. on a temporary, nonimmigrant visa, they can apply for a nonimmigrant visa waiver to allow them to enter the U.S. The waiver will be granted for a specific period of time (e.g. 5 years) and is also visa-specific, meaning if they obtain a waiver for a B1/B2 visa and then they want to apply for an F-1 visa, they would need to submit a new waiver application for the F-1 visa.

One question that can arise is whether the foreign national is permitted to change or extend status in the U.S. after entering on the visa that was granted in connection with the waiver application. For example, if an applicant is granted a 5-year waiver on their B visa, can they enter the U.S. on the B visa and change to E-2 status?

There is some debate about whether an applicant can change status without getting a new waiver for the new visa classification. Adjudication trends suggest that sometimes U.S. Citizenship & Immigration Services (USCIS) will not grant a change of status, meaning the foreign national would have to apply for a new waiver connected to the new visa classification at a U.S. Consulate or Port of Entry. While there are some attorneys who take the position that USCIS should not be re-adjudicating admissibility for a change or extension of status, current USCIS trends indicate there is some risk with this approach. However, one thing that is clear in the legal guidance is that a change or extension of status cannot be granted if the waiver will expire before the end date of the requested extension. For example, if a foreign national was granted a waiver that was valid for one year, entered the U.S. ten months into the one-year validity and then tried to extend their B status in the U.S. for another six months, this extension could not be approved as the waiver would have expired.

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