Important Considerations:
• A timely filed, non -frivolous Change of Status application (Form I-539) generally allows the student to remain lawfully present in the U.S. while the application is pending.
• If the application is ultimately denied, the student typically accrues unlawful presence retroactively from the date of denial (unless protected by other pending applications or exceptions).
• Employment or unauthorized academic activities are strictly prohibited while awaiting adjudication of the B-2 application.
Employment-Based Nonimmigrant Options (e.g., H-1B, O-1, TN): These options require a bona fide employment offer from a U.S. employer qualified to sponsor the student’s petition. Common employment-based visa categories include the H-1B (specialty occupation), O-1 (extraordinary ability), and TN (under NAFTA/USMCA for Canadian or Mexican nationals). Eligibility criteria, evidentiary standards, and timing constraints for these petitions are stringent and must be thoroughly documented.
Important Considerations:
• Timely and properly filed employment -based nonimmigrant petitions (with a concurrent change- of-status request if eligible) typically allow the applicant to remain in lawful status while the petition is pending.
• If the petition or change of status is denied, unlawful presence may accrue immediately upon denial if no other lawful status exists.
• Students should avoid working unless explicitly authorized by USCIS through approval of the petition and issuance of an Employment Authorization Document (EAD), if applicable.
Family-Based Immigration Options: Students may explore family-based immigration routes only if they have a genuine, well-documented, bona fide relationship with an eligible U.S. citizen or lawful permanent resident (LPR) spouse or family member willing to file an immigrant petition. USCIS rigorously assesses relationship authenticity, particularly in marriage-based petitions, requiring extensive supporting evidence.
Important Considerations:
• Filing Form I -485 (Adjustment of Status) concurrently with or after an approved family-based immigrant petition typically permits lawful presence while pending, provided the student maintained lawful status at the time of filing. • A student who is out of lawful status due to SEVIS termination or visa revocation generally cannot successfully adjust status without careful analysis of eligibility exceptions (e.g., Immediate Relative classification to a U.S. citizen spouse may allow adjustment even after overstaying).
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LexElite Law
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