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Extend Your Tourist Visa

Posted by attorney Moses Apsan
Filed under: Employment

Extending your visit when you enter in non-immigrants status, such as tourist visa, business visas, religious visas, student visas , working visas etc

If you want to extend your stay in the United States, you must file a request with U.S. Citizenship and Immigration Services (USCIS) on the Form I-539, Application to Extend/Change Nonimmigrant Status before your authorized stay expires. If you remain in the United States longer than authorized, you may be barred from returning and/or you may be removed (deported) from the United States. Check the date in the lower right-hand corner of your Form I-94, Arrival-Departure Record, to determine the date your authorized stay expires. We recommend that you apply to extend your stay at least 45 days before your authorized stay expires. During the wait for a response you will remain legal under the "120 day tolling period."

You may apply to extend your stay if:

  • You were lawfully admitted into the United States with a nonimmigrant visa
  • Your nonimmigrant visa status remains valid
  • You have not committed any crimes that make you ineligible for a visa
  • You have not violated the conditions of your admission
  • Your passport is valid and will remain valid for the duration of your stay

You may not apply to extend your stay if you were admitted to the United States in the following categories:

  • Visa Waiver Program
  • Crew member (D nonimmigrant visa)
  • In transit through the United States (C nonimmigrant visa)
  • In transit through the United States without a visa (TWOV)
  • Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
  • Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)

For information on how to apply, see the “_ How Do I: Guides for Nonimigrants"_

What happens after I file for extension or change of visa I donot get a response until AFTER the 120 day tolling period?

The Immigration and Naturalization Service issued two memorandums on March 3, 2000: the first discusses the period of stay authorized by the Attorney General with Respect to Pending Change of Status and Extension Applications after the 120-day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act. The other one discusses Section 222(g) of the Immigration and Nationality Act (automatic voidance of nonimmigrant visas (and combination nonimmigrant visa/border crossing cards).

  • 3-3-00 Pearson Memo: TOLLING FOR GOOD CAUSE;
  • 9 FAM 40.92 N1 Interpretation of "Unlawful Presence" 09-11-2002;
  • Interpretation of “Period of Stay Authorized by the Attorney General" in determining “unlawful presence" under INA section 212(a)(9)(B)(ii). Janice Podolny /s/ Chief, Inspections Law Division, Office of General Counsel, March 27, 2003;
  • Guidance on Interpretation of “Period of Stay Authorized by the Attorney General" in Determining “Unlawful Presence" under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (Act) April 2, 2003 Thomas E. Cook /s/ Acting Assistant Commissioner Office of Adjudications.

Under current Service policy, if a decision is not rendered with Respect to Pending Change of Status or Extension Applications within the tolling period aliens admitted to the United States until a specific date begin accruing unlawful presence on the 121th day after the expiration of their Form I-94.

Due to the current backlogs, which can extend beyond six months, aliens who remain in the United States while the E/S (extension of stay) or C/S (change of status) is pending may incur a 3-year or even a 10-year bar to admission if the application is ultimately denied.

In order to avoid problems, through no fault of their own, reagarding "unlawful presence" , the Service has decided that Nonimmigrants who were admitted until a specific date and who apply for E/S or C/S and whose applications have been pending beyond the 120 day tolling period should be considered to be in a period of stay authorized by the Attorney General, sol ong as certain requirements are met.

The Service has further decided that the period of stay authorized by the Attorney General includes the E/S or C/S applications for the entire period that it is pending. As a practical matter, this policy applies only to those Nonimmigrants who were admitted until a specific date and also whose I-94 has expired while the E/S or C/S application is pending. If the Service approves the E/S or C/S application, the nonimmigrant will be granted a new period of stay authorized by the Attorney General, which will be retroactive to the date the previously authorized stay expired. In these cases the is no unlawful presence.

If my request to stay past my initial period of admission was denied by U.S. Citizenship and Immigration Service (USCIS), how long do I have before I have to leave the U.S.?

USCIS generally allows you 30 days to depart the U.S. starting from the date on the letter notifying you of their decision to deny an extension. If you do not depart within 30 days, you will be considered deportable. USCIS cautions that if you are refused permission to extend your stay, you may encounter problems with Consulates overseas the next time you apply for a U.S. visa because their computer records will indicate that you did not leave the U.S. within the time frame of your initial period of entry. Be sure to keep your rejection letter and proof of the date of your departure (a boarding pass is the best thing, but passport stamps showing entry into another country is also helpful) to give the consulate the next time you apply for a new visa. Having those may mitigate your apparent overstay and could improve your chances of renewing your visa without the five year restriction usually applied to people that have overstayed their visit.

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