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Before my original non-immigrant status expired, I filed a change-of-status petition. While this is pending, can I file a second change-of-status petition to a different category?

Two individuals figuring out their options on their laptop

One of the eligibility requirements to file a change of status or extension of status petition with USCIS is that the applicant must have been in “authorized non-immigrant status” at the time of filing. If a change of status petition is timely filed, the applicant is allowed to stay in the United States even after the original status has expired, up till the point where the USCIS makes a decision on the change of status petition.

An interesting question arises when someone is in this “bridging” period between the expiry of their original non-immigrant status and the day a decision is made on the change of status petition, where the petition is still pending with the USCIS. Can an applicant file a second change of status to a different category during this “bridging” period?

The answer is yes, but with a very major caveat. The issue here is that whether the applicant’s “bridging period” would be considered “authorized non-immigrant status” depends on the result of the first change-of-status petition. If the first petition is approved, then the applicant would be considered to have been in authorized non-immigrant status all along. But if the first petition is denied, then the applicant, during in the “bridging period,” will be considered to have had no status at all.

Let’s consider a hypothetical example. Let’s assume an applicant’s O-1 status was expiring on March 31, and on March 30, the applicant filed a change-of-status application to B-1 visitor status. Though the applicant’s original status expired on March 31, the applicant can continue to stay in the United States while the B-1 petition is pending. Then let’s assume that the applicant set up a business a month later in April, and wanted to apply for a change of status to E-2 status. At this time, assume B-1 change of status application was still pending as of April 15. Could the applicant file an E-2 change of status application on April 15?

In this scenario, the applicant is already in the “bridging period” by April 15. The applicant may file the second change of status petition to E-2, but the validity of this second petition will depend on the results of the first change of status petition to B-1.  In other words, USCIS will likely not decide on the E-2 petition before the B-1 petition is decided. If the B-1 change of status is ultimately approved, the E-2 petition will be deemed to have been properly filed, since the applicant will be deemed to have been in B-1 status as of April 15.  However, if the B-1 change of status petition is ultimately denied, then the applicant will be deemed not to have been in any status on April 15, so the E-2 petition will also be denied as not properly filed.

Another important point to consider is how long you requested on your first change of status petition. For a B-1 change of status, the maximum time you can normally request is six months. If you file a change of status petition and you want to file a second change of status petition, you should make sure to do so during the requested validity period of the first petition. If we look at the example above, the B-1 change of status was likely requested to start on March 31. If the applicant requested a change of status to B-1 that would last for six months, the ending date would be September 30, so the second change of status request would need to be made on or before September 30.

It is a very complex inquiry on when and how individuals are allowed to change and extend their non-immigrant statuses in the U.S., and care is needed on the timing of applications. For these types of questions, the assistance of a skilled attorney could play a critical role.

Related posts:

I filed a change of status/extension of status petition. Can I stay in the U.S. while the petition is pending? What is unlawful presence?

My status is running out and I cannot leave because of Corona Virus. Can I file a Change of Status application in the U.S.?

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