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General Nonimmigrant Problems
Intent to Remain Permanently
Most nonimmigrant categories require either that the alien seek to enter the country temporarily, or that the alien have a foreign residence that he/she has no intention of abondoning. An alien, thus, who applies for a nonimmigrant visa, and who intends to remain permanently in the United States is obviously ineligible.
What happens if an alien enters with the genuine intent to stay only temporarily, but then changes his/her mind?
The desire to remain in the U.S. permanently in accordance with the law is not necessarily inconsistent with lawful nonimmigrant status. The alien may apply for an adjustment of status if he/she is not deportable as one who
- was inadmissible at the entry, or
- failed to maintain his/her nonimmigrant status.
However, the law isn't violated if a nonimmigrant enters with the hope of lawfully acquiring permanent residence at a later date.
Out-of-Status
Previously, the law permitted an alien who was out-of-status (e.g. he/she overstayed his nonimmigrant visa) to apply for adjustment of status as long as he/she pays substantial penalty fee. This law expired in 1998. Therefore, an out-of-status alien must return to his/her home country to adjust his/her visa.
No Intent to Remain Permanently
As mentioned above, intentions can change. An alien who was admitted as a student might now wish to become a treaty trader. Someone who was admitted as a business visitor might want to switch to intra-company transferee, or a person might simply desire to extend his/her visa.
Change of Nonimmigrant Status
One procedural option for a nonimmigrant who would prefer another nonimmigrant status, and who qualifies substantively for the desired status, is to go home and to apply to the appropriate U.S. consulate for a new visa. But sometimes it might be difficult, if not impossible, to go home and come back to the U.S., or it might simply be more convenient to do the paperwork here. Therefore, Congress enacted a provision that allows the alien to change his/her nonimmigrant status.
To qualify for a change of status the alien must:
- have been lawfully admitted as a nonimmigrant, and
- he/she must be continuing to maintain that status, and
- satisfy several specific conditions of eligibility.
Note furthermore that certain categories of nonimmigrants are ineligible to change to certain other categories.
Extention of Nonimmigrant Visa
An alien who simply wants to extend his/her nonimmigrant visa is not required to go to his/her home country to do so. The alien generally may apply to the INS for an extension (assuming the substantive criteria for the particular nonimmigrant category are met). Extensions are not available to aliens who have overstayed or otherwise violated the terms of their existing stays, absent "extraordinary circumstances".
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