Immigration Road Logo
Non-Immigration Visa

Nonimmigrant visas (NIV) are issued to foreign nationals who intend to enter the U.S. for a temporary period of time, and for a specific purpose. For example, a B2 visa allows a visitor to enter the US as a tourist, but not as a student or worker. The visa holder must agree to leave before his or her authorized stay expires. However, certain nonimmigrant categories allow extension of stay or change of status while the visa bearer is already in the states, by filing form I-539 properly. There are many nonimmigrant visa classifications.

Visa vs. Status

Although visa and immigration status are closely related in many ways, they are completely different. A visa is basically a travel document issued by the Department of State (DOS) that allows the visa bearer to travel to a port of entry. The visa holder's immigration status, if admitted, is then determined by Customs and Border Protection (CBP) at the POE. If the visitor wishes to extend his/her stay or change status, the request is handled by the United States Citizenship and Immigration Services (USCIS).

  • DOS determines how long your visa remains valid, and you must enter the US before its expiration date
  • CBP determines how long you are allowed to stay in the US, regardless of your visa validation period
  • A person may have multiple visas, but only one can be used to enter the US.
  • You may remain in legal status even if your visa has expired
  • You may change your status while in the US but don't have a visa
  • You will still need a visa (or travel document) to return to US even if you are already under legal status

See visa vs. status examples.

Dual Intent

Under Section 214(b) of the Immigration and Nationality Act, if a nonimmigrant applies for adjustment of status to become a permanent resident, he or she is then presumed to have immigrant intent, thus no longer eligible to maintain non-immigrant status. Section 214(h), however, makes an exception that H and L visa holders are allowed to have "dual intent," meaning that they can keep their nonimmigrant status while applying for green cards. This rule applies to both primary visa holders(H1, L1) and their dependent family members (H4, L2).

Extension of Stay

People under certain nonimmigrant categories may extend their authorized stay, under the same classification, by properly filing form I-539. The petition must be filed before the expiration of the current status. The applicant also must have maintained his or her non-immigrant status and not violated any terms during their stay. Even if all requirements have been met, however, an extension of stay may still be denied. For example, visiting parents with B-2 visas often find their requests rejected when they simply wish to stay longer with their loved ones .

Change of Status

People under certain nonimmigrant categories may change their status to another nonimmigrant category. For example, if you arrived as a visitor with a B-2 visa, but want to enroll in a graduate school and have been accepted, you may file I-539 with the USCIS to change your status to F1 student. Note that "change of status" is different from "adjustment of status," which allows an alien to become a permanent resident without having to leave the US.

If you wish to change your status to either H (worker), L (transferee), or O (extraordinary ability), you cannot file the application yourself. Instead, your employer must submit Form I-129 to the USCIS along with supporting documents.

If you are changing to F(students), B (visitors), J (exchange scholars), M (vocational students), or their families, you may file Form I-539 on behalf of yourself. Note that exchange visitors (J visa holders) must have received a waiver before they can change status, and M students are not allowed to change to F students.

When to File for Extension or Change of Status

You must apply before your current status expires. Certain cases may experience huge backlogs, so you will want to leave plenty of margin by filing early. Generally speaking, as long as your application has been received by the USCIS and is in pending state, you will remain in legal status even if your current status expires before you receive a decision. However, things can get complicated, especially if your I-539 is later denied.

If your current status has already expired, you may still file for a change of status but you must approve that:

  • The delay of filing was due to extraordinary circumstances beyond your control
  • The length of delay was reasonable - as determined by USCIS officials
  • You have not violated other terms (other than over stayed)
  • You did not try to apply for green card (there are some exceptions)
  • You are not currently in deportation

Visa Waiver Program (VWP)

Foreign nationals of certain countries may enter the US without a visa, under the Visa Waiver Program (VWP). The travel can be either for business (WB) or tourism (WT), and must be 90 days or less. A machine readable passport is also required, and must be valid for at least six months past their expected stay in the US. People eligible for VWP may still apply for a visa to avoid certain limitations.

Currently there are 36 countries participating in the Visa Waiver Program:

Andorra Australia Austria Belgium Brunei
Czech Republic Denmark Estonia Finland France
Germany Greece Hungary Iceland Ireland
Italy Japan Korea, Republic of Latvia Liechtenstein
Lithuania Luxembourg Malta Monaco the Netherlands
New Zealand Norway Portugal San Marino Singapore
Slovakia Slovenia Spain Sweden Switzerland
United Kingdom        

Who Should Apply for a Visa Instead of Using VWP?

Even if an international traveler is eligible for VWP, she or he must apply for a visa if they do not meet certain conditions. For example, a visa is requested if the person:

  • Wants to remain in the United States for longer than 90 days, or envisions that they may wish to change their status (from tourism to student, etc.) once in the United States;
  • Wants to work or study in the United States, wants to come to the United States for other purposes not allowed on a visitor visa, or intends to immigrate to the United States;
  • Does not have a machine-readable passport (MRP) issued or renewed/extended before 10/26/05, or is unable to meet other requirements outlined above for passports issued on or after October 26, 2005 or October 26, 2006.
  • Intends to travel by private aircraft or other non-signatory air or sea carriers to the United States;
  • Has been refused a visa or admission to the United States before, or did not comply with the conditions of previous VWP admissions (90 days or less stay for tourism or business, etc.); or
  • Has a criminal record or other condition making them ineligible for a visa (see Classes of Aliens Ineligible for Visas ).

Visa Application Fee vs. Visa Issuance Fee

Visa application fee is mandatory and non-refundable. Everyone applying for a U.S. visa must pay this fee even if the application is eventually denied. The visa application fee covers visa application processing costs.

Visa issuance fee is only charged if the visa is granted, and only if the applicant is from a country that is subject to reciprocity, meaning that the country charges U.S. citizens more for a similar visa than the standard U.S. visa application fee.

More on Specific Visas:

Other Visa Related Topics: