GENERAL

As a nonimmigrant, you are only permitted to stay in the United States for a temporary period of time.  The date in which you are required to leave the U.S., your departure date, will be marked on your I-94 Departure-Arrival Record, which is given to you by the U.S. government upon approval of your nonimmigrant status.  The period of time in which you are lawfully permitted to stay in the U.S., as indicated on your I-94, is referred to as your duration of status. This article provides a basic overview on how to extend your duration of status – that is, how to extend your stay in the U.S. as a non-immigrant.

Am I Eligible to Extend My Stay in the U.S. as a Nonimmigrant?

BASIC REQUIREMENTS:

Whether or not you will be permitted to extend you stay in the U.S. beyond your departure date is at the sole discretion of the U.S. government.  Nonetheless, in general, your request to extend your stay will be granted if you meet the following criteria:

1. You were lawfully admitted to the U.S. under a nonimmigrant visa category;

2. Your nonimmigrant status remains valid, meaning you have not stayed in the U.S. past your departure date;

3. You have not  engaged in criminal activity that would render you ineligible to stay in the U.S.;

4. You have not violated the terms of your status or the conditions of your admission to the U.S., and

5. Your passport is valid and will remain valid for the duration of your extended stay.

NONIMMIGRANTS WHO CANNOT EXTEND THEIR STAY IN THE UNITED STATES

You are not permitted to extend your stay in the U.S. if you fall within any of the following nonimmigrant categories:

1. K-1 or K-2 Visas – Fiancé(e) or Dependent of a Fiancé(e)

2. D Visa – Crewman

3. C Visa – Alien in Transit

4. S Visa – Witness or Informant beyond a total of three years

5. WT or WB – Visa Waiver Program

TWOV – Transit without Visa

How Do I Extend My Stay in the U.S.?

To extend your stay in the U.S., your employer must file USCIS Form I-129 if you fall within one of the following nonimmigrant categories:

1. TN-1 or TN-2 – Canadians and Mexicans under NAFTA

2. E-1 or E-2 – treaty traders and investors

3. H-1B, H-2A, H-2B, or H-3 – temporary workers

4. L-1A or L-1B – intracompany transferees

5. O-1 or O-2 – aliens of extraordinary ability

6. P-1, P-2, or P-3 – entertainers and athletes

7. R-1 – religious workers

8. Q-1 – participants in international cultural exchange programs

 If you are requesting an extension of stay as a nonimmigrant in one of the above categories, your accompanying spouse and unmarried children under the age of 21 must file UCIS Form I-539 as well.

Note: Each of the above categories have specific requirements and limits.  For more information, contact your employer or a competent U.S. licensed attorney.

May I Extend My Stay in the U.S. if My I-94 has Expired?

If your I-94 expires while you are residing in the United States, you are “out of status.”  Once you are out of status, you are in the U.S. as an unauthorized individual and, in general, should leave the U.S. as soon as possible.

There are certain instances where an out of status foreign national will be permitted to extend his or her stay in the U.S., however.  For example, if you have remained in the U.S. past the date of departure on your I-94, USCIS may authorize your extension if you can prove:

1. the delay was due to extraordinary circumstances beyond your control;

2. the length of the delay was reasonable;

3. you have not done anything else to violate your nonimmigrant status;

4. you are not trying to obtain permanent residence status; and

5. you are not in removal (deportation) proceedings.