Extension of stay

Whether the alien applies for a tourist visa or a non-immigrant work based visa, the USCIS and/or the Department of State grants the authorized stay for the visa for a certain period. Depending on the visa type this can range from 3 months to 3 years, with certain exceptions. As such, it is the responsibility of the alien to depart the U.S. at the expiration of his or her authorized stay or to apply for an extension of stay or a change of status.

The consequences of exceeding the authorized stay are indeed rather serious from facing a bar to re-entry to deportation. This is also sometimes referred to as remaining in the U.S. “out of status.” There is a common mistake among many aliens that the length of stay beyond the term authorized is irrelevant and as such some think that “I’ll face the same consequences if I stay beyond my authorized stay, whether it is a month or 2 years.” This is certainly a big mistake. As a matter of fact the bars greatly vary from 3 years to 10 years based on the number of days that the alien has remained in the U.S. illegally or out of status.

If you are unclear when your authorized stay in the U.S. expires, you should look at your I-94 arrival-departure record for the expiration date or the I-797 approval notice if applicable. If you are planning to stay longer than your authorized stay, you should by all means apply for an extension of your stay or change your status. There are certain conditions and criteria that you must meet in order to qualify for an extension of stay; as such consulting an experienced immigration lawyer is strongly advised.

Contact us today to find out if you qualify and for a free consultation with an immigration attorney.

Application Process

Your visit can be extended as long as you did not enter the U.S. on a visa waiver and your total stay will not exceed one year. You cannot usually get an extension of more than six additional months—and under the INS’s proposed new rules; the normal extension period may be shortened to 30 days. Checks and money orders are accepted. It is not advisable to send cash.

If the USCIS wants further information before acting on your case, all papers, forms and documents will be returned together with another form known as an I-797. The I-797 tells you what additional pieces of information or documents are expected. Supply the extra data and mail the whole package back to the INS regional service center. Applications for extensions of stay for visitors are normally approved within two to four months. You must apply before the date on your I-94 card passes, but not more than 60 days before. If you file your application on time, you will be permitted to remain in the U.S. until receiving a decision, even if your authorized stay expires.

When your application is approved, you will receive a Notice of Action Form I-797, indicating the approval with the new date. Your I-94 card, which you submit as a document with your extension application, is returned to you, but it will not be stamped with a new date. You must keep Form I-797 together with your I-94 card at all times.

If your application for an extension of stay is denied, you will be sent a written notice explaining the reasons for the negative decision. The most common reason for denial is that the USCIS feels you are merely trying to prolong your U.S. stay indefinitely. When your application is denied, you will normally be given a period of 30 days to leave the U.S. voluntarily. Failure to leave within that time may result in your being deported.

There is no way of making a formal appeal to the USCIS if your extension is turned down. You may challenge the decision in a U.S. district court, but the time and expense required for this approach usually makes it impractical.

Special Note for Visa Waiver Program

If you were admitted to the U.S. under the Visa Waiver Program, you may not apply for an extension of stay unless there is a genuine emergency that prevents you from leaving the U.S. on time. If such an extension is needed, you should apply for it in person, not by mail, and you will not get more than 30 days’ time to leave.

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