Change of status petitions generally have to be received by USCIS before your I-94 expires, but USCIS may exercise a discretion and accept petition that was filed late if the late filing is due to extraordinary circumstances beyond your control. This blog will go over some considerations you should keep in mind in this situation.
What is Change of Status?
When you come to the U.S. on non-immigrant visa and you later want to change your non-immigrant category while staying in the United States, you can submit an application to the U.S. Citizenship & Immigration Services (USCIS) to change your status.
For example, if you originally came to the U.S. on B-2 tourist visa, but you then want to apply for an E-2 status without having to leave the U.S., you would need to change your status from B-2 status to E-2 status.
Your Change of Status petition has to be received by USCIS before your I-94 expires. That is not always the case, and we meet many people who filed their petition late.
What are some common mistakes for late filings?
- Incorrectly written checks (please see USCIS’s instructions on how to write the checks for the USCIS filing fees here)
- Rejected credit card (in certain situations, you may pay USCIS filing fees with your credit card, by submitting credit card form to USCIS). USCIS will only try to charge the credit card once, and if it does not work for any reason, they will reject the petition). For example, if the billing zip code does not match or if the expiration date of the card is incorrect, the petition would be denied.
- Missing signatures on USCIS forms
- Missing/incorrect dates on USCIS forms
- You did not know your I-94 expired
- You did not include the required evidence with your petition
It is extremely important that you always try to submit the change of status petition well in advance before your I94 expires, so you would ideally receive a Receipt Notice from USCIS confirming the receipt of your petition before your I-94 expires. Currently, it’s taking USCIS some time to do an initial review of the petition and filing checks, so it may happen that you will receive the receipt/rejection notice couples weeks after you filed the petition and after your I-94 already expired.
Is it possible to file a Change of Status petition after your I-94 expired?
This is possible in very limited circumstances, if you meet the following requirements:
For example, if you had a medical emergency and you were hospitalized, this could count as an extraordinary circumstance. You would want to file the petition shortly after you are released from the hospital, so the late filing is commensurate with your circumstances.
Another example of extraordinary circumstances would be circumstances caused by the COVID-19 global pandemic.
(2) You have not otherwise violated your nonimmigrant status (e.g. you have not worked unauthorized);
(3) You remain a bona fide nonimmigrant; and
(4) You are not the subject of removal proceedings under 8 CFR part 240.
Please note that this relief is completely discretionary and USCIS does not have to grant it to you.
How can I apply for this relief? Is there a special USCIS form for this?
No, there is no special form for this filing and you would be making an argument & including supporting documentation with the lately filed Change of Status petition.
What happens if USCIS grants this relief?
If USCIS grants this relief, your change of status petition will usually be approved from the date of USCIS approval. This means, that USCIS will not usually backdate the approval. In your change of status petition, you should still ask USCIS that they backdate the change of status approval day to the day when your I-94 expired, but USCIS does not have to (and does not always) do this.
Your I-94 expired on January 1, 2021. USCIS approved the Change of Status petition that was received on January 20, 2021 and also forgives the late filing. They approve the petition on April 1 with validity dates April 1, 2021 – March 31, 2023. Is this fine?
One thing to be careful about here is that you will probably want to disclose on future applications that you stayed past your I-94 (less than 180 days), before your change of status petition was approved. Because you did not stay for more than 180 days past your I-94 expiration date, the 3-year bar would not apply to you.
Your I-94 expired on January 1, 2021. USCIS approved the Change of Status petition that was received on January 20, 2021 and also forgives the late filing. They approve the petition on September 1 and you stayed in the US during the pendency of the petition. Is this fine?
Here, you stayed in the US for more than 180 days after your I-94 expired and you would be subject to the 3-year bar. You would not be able to come to the U.S. unless you get a waiver at a U.S. Consulate abroad.
What happens if USCIS does not grant this relief?
Because of the 3-year bar, we usually recommend leaving the U.S. before the 180 day mark from your I-94 expiration mark is up. Also, if USCIS denies the change of status petition within the 180 days, you should leave the U.S. as soon as possible after the denial.
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