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 on-immigrants on temporary US visas can stay in the country only for the time period specified by the Immigration and Naturalisation Service on the lower right hand corner of the Arrival and Departure Record - the I-94. The INS, however, does grant extensions beyond the date specified to certain categories of non-immigrant candidates, if its primary fear that the non-immigrant is trying to permanently wedge his or her way into the US is allayed. The extension grant is dependent on two factors: the non-immigrant’s conduct during the authorised period of stay and the reasons for seeking the extension. For instance, if an immigrant has used the B-I visa to work in the US for a temporary period, the INS is hardly likely to grant an extension. The INS’ nod of approval is also dependent on the visa used to enter the US. For instance, regardless of the circumstances, the Immigration and Naturalisation Act forbids the INS from granting extension to nonimmigrant, who have entered the US on the following visas:
VWPP - Visa Waiver Pilot Program
D - Crewman visa
C - Alien in transit or in transit without a visa
K - Fiancée of the US citizen
S - Informant (and accompanying family) on terrorism or organised
crime
Excluding these categories, persons entering the US on other temporary visas are eligible to apply for extension of stay. The applicant must apply for extension 45 days before the visa expires, although the INS will accept applications for extension till the day the visa expires. In the latter case, the likelihood of the INS rejecting the application for extension of stay are high, as it may be perceived as an intent to immigrate to the US. For certain reasons, if the applicant is unable to file the application and the authorised status has expired, he must prove the following:
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The delay was due to extraordinary circumstances beyond your control;
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The length of the delay was reasonable;
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You have not done anything else to violate your nonimmigrant status (such as work without INS approval);
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You are still a nonimmigrant (This means you are not trying to become a permanent resident of the United
States); and
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You are not in formal proceedings to (deport) you from the country.
Apart from these broad rules, which pertain to all non-immigrant visa types, the forms and procedures for application for extension adopted by the INS are dependant on the visa type used by the applicant to gain entry into the US.
Form I-129 Category
The following categories of nonimmigrants must file INS Form I-129 (Petition for Nonimmigrant Worker) and supporting documentation for extension of stay:
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E - International Traders and Investors
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H - Temporary Workers
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L - Intra-company transferees
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O - Aliens of Extraordinary Ability
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P - Entertainers and Athletes
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Q - Participants in International Exchange Programs
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R - Religious Workers
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TN - Canadians and Mexicans under Nafta
Form I-539 Category
If an applicant is classified under the following nonimmigrant categories, he or she should file
INS Form I-539 (Application to Extend/Change Nonimmigrant Status) and submit any required supporting documents:
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A - Diplomatic and other government officials, and their families and employees.
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B - Temporary visitors for business or pleasure.
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F - Academic Students and their families
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G - Representatives to international organisations and their families and employees.
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I - Representatives of foreign media and their families
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J - Exchange Visitors and their families
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M - Vocational Students and their families
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N - Parents and children of the people who have been granted special immigrant status
because their parents were employed by an international organisation in the United States.
Spouse and Child Category: The spouse and children of non-immigrant visa holders can also apply for extension of stay. This, however, depends on the situation of the principal applicant.
If the applicant falls in the Form I-129 category, the INS the spouse and the child must carefully read and complete INS Form I-539 (Application to Extend/Change Nonimmigrant Status) and submit any required supporting documents to extend their stay. It is best to submit both forms at the same time.
If the non-immigrant is filing INS Form I-539, the applicant may include his or her spouse and any unmarried children under the age of 21 in the application if the same nonimmigrant category applies to them. The applicant may also include his spouse or children in the application, if they were given derivative nonimmigrant status. For instance, if a student is given an F-1 "Academic student" visa, then the spouse and child are given F-2 "Spouse and Child of an Academic student" visas.
How to Apply: Forms I-129 and
I-539 can be download directly from the INS web site. Applicants must submit the application along with the correct fee to the INS Service Center that serves the area where he or she is temporarily staying. If the nonimmigrant category is work-related, the application and correct fee should be mailed to the INS Service Center that serves the area where the applicant will be working.
The INS’ Service Centers do not accept fee in cash. Fees must be submitted as money orders, personal cheques and cashier’s cheques. Be sure the cheques are signed and correctly dated. Post-dated cheques are acceptable as long as the date on the cheque is no more than five days in advance of the date the check is received. The application fee for applicants who fall in the Form I-129 category must use the $110 base fee, plus $1,000 additional for H-1B petitions. The application fee for non-immigrants who fall in the Form 1-539 category is $120.
According to INS suggestions, applicants must place the cheque on top of the application, securely fastened in the upper left corner. If more than one application is filed, submit a separate cheque for each. This will avoid the necessity of returning all applications should just one be found to be unacceptable. Place all the cheques on the top application.
Documents Needed to File Extension: Apart from the completed application form and the fees, the applicant must attach relevant documents to prove that his or intention is to stay temporarily in the US. The documents are:
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An application stating the reason for the requested extension.
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Proof of financial support during this extended stay.
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Copy of your return tickets as a proof of intentions to stay temporarily.
Find Status of Application: Applicants can find the status of their case
by calling "INS Direct" at the Service Center where they filed
the case. On filing, the Service Center, provides applicants and
petitioners a receipt that includes a receipt number. The applicant must
provide this receipt number to the INS personnel to "INS
Direct".
The telephone numbers are:
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California Service Center
Nebraska Service Center
Texas Service Center
Vermont Service Center
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(949) 831-8427
(402) 323-7830
(214) 381-1423
(802) 527-3160
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Alternately, applicants can also write to the Service Centre where the application was filed. The letter should include the following:
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Applicant's or petitioner's A-Number (8 or 9 digit number following the letter "A");
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Applicant's or petitioner's current legal name and, if different, the name as it appears on the application
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Applicant's or petitioner's date of birth
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Type of application and form number
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Applicant's or petitioner's receipt number, if the applicant received one
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Approximate date and office with which the application was filed; and
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Office where interviewed, if applicable.
Applicants, who have filed extension of stay application, at an INS office, can write to the
local INS office directly. The applicants must include the above-mentioned above.
If the application was filed at one of the four Service Centers but you received a notice to appear for interview at the local INS office or were interviewed at that location, contact the local office directly, rather than the Service Center.
In Case INS Denies Application: If the INS denies application for extension of stay, the applicant will tell you why the application was denied. The applicant cannot appeal against a negative decision to a higher authority. However, the applicant has the right to submit a motion to reopen or reconsider with the same office that made unfavorable decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or INS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.
Applicants in need of advice can contact the INS District Office near their home for a list of community-based, non-profit organisations that may be able to assist you in applying for an immigration benefit.
Related Sites:
http://www.ins.usdoj.gov/graphics/fieldoffices/statemap.htm
http://www.ins.usdoj.gov/graphics/formsfee/forms/i-129.htm
http://www.ins.usdoj.gov/graphics/formsfee/forms/i-539.htm
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