Change of Status from Visa Waiver to Another Nonimmigrant Status

Coming to the U.S. can be eye opening. Many people may visit, and then realize that they would like to stay longer, either to work or go to school. Someone may come as a tourist, and then later decide that he wants to stay. Can someone who comes as a tourist change status to another nonimmigrant visa status and stay longer in the U.S.?

For example, Larry is from France. France participates in the Visa Waiver Program (VWP) with the U.S. If your country participates in the VWP, there is no need to get a tourist visa to visit the United States. The VWP is designed for business or pleasure temporary travel that is not more than 90 days. For Canadian citizens, it is 180 days. Learn more about countries participating in the Visa Waiver Program here.

When Larry enters the U.S. on VWP, he originally intends just to visit and learn more about the U.S. However, then he finds a great school, and wants to change his status to F-1 so that he can attend the school, without leaving the U.S. Can he do that?

No. As a general rule, a person on VWP cannot change his or her status while still in the United States. There are minor and rare exceptions, such as U visas and asylum, but the overwhelming majority of people on VWP cannot change status to another nonimmigrant visa while still in the U.S. Larry will have to go home and apply for a visa at the U.S. consulate in France.

An exception to this rule against changing status while in the U.S. on VWP is for Canadian citizens, who are allowed to stay up to 180 days for business or pleasure temporary travel, instead of only 90 days. Canadian citizens can change status to most kinds of nonimmigrant visa statuses, including for work or school (ex., F, H or L visa), without departing the U.S.

However, Canadian citizens should be especially cautious about preconceived intent. The USCIS frequently denies applications for change of nonimmigrant status filed within 60 days of entry on VWP for Canadian citizens. Preconceived intent means that you knew you were going to change your status and stay in the U.S. before coming to the U.S. through the VWP. In order to be eligible to enter the U.S. through the VWP, you must have the intention to leave before your authorized stay is over, because VWP is only for business or pleasure temporary travel. Learn more about eligibility for the Visa Waiver Program here. A Canadian citizen who enters through the VWP and decides later to stay in the U.S. should be prepared to document that he or she did not have preconceived intent.

There is no rule the USCIS uses to find preconceived intent. However, there are two general rules it often follows. The first is the “30/60 day” rule used by the Department of State. Using these timing guidelines, the USCIS frequently denies applications for change of nonimmigrant status filed within 60 days of entry on VWP for Canadian citizens. The “Rapid Sequence of Events” test is the other test the USCIS sometimes uses to identify preconceived intent. This test is when, all things considered, the person who entered on VWP performed too many tasks, too quickly, that demonstrate that he or she intended to stay permanently in the U.S.

What if Larry were from Canada? Then he would be allowed to apply to change status to an F-1 nonimmigrant visa so that he could go to school. How can Larry show that he did not have preconceived intent? He probably had not sold his house, or quit his job, because he had no plans to stay in the U.S. when he left Canada. Having a home and a job in another country tends to demonstrate that you did not have preconceived intent to stay permanently in the U.S.

Adjustment of Status from Visa Waiver to Lawful Permanent Resident (Green Card Holder)

What if you come to the U.S., and find that you like it so much, you want to file to adjust your status to lawful permanent resident status (green card holder) so that you can stay permanently? Can you do that?

Usually you cannot. As a general rule, a person who enters on VWP cannot adjust status to lawful permanent resident status (green card holder) while in the U.S. By entering on VWP, you certify to the Customs and Border Protection agent who admits you that you do not intend to stay in the U.S. If you intend to stay in the U.S., you are considered ineligible for VWP and should seek the appropriate visa from the U.S. consulate in your country.

The exception to this is for immediate relatives of U.S. citizens. Sometimes, after people arrive in the U.S. on VWP, they might change their minds and decide they want to stay permanently with their U.S. citizen family member. If you are in the U.S. based only on the VWP, then you can file for a green card based on marriage to a U.S. citizen, or being the child of a U.S. citizen (under 21 years old and unmarried), or being the parent of a U.S. citizen, and the U.S. citizen child who petitions for you must be 21 years or older (these three bases together is called the “immediate relatives” category). For all other kinds of green card applications, you will still have to go through the consulate in your country after the initial petition has been approved by the USCIS.

For example, Sara lives in England. Dan lives in Chicago and is a U.S. Citizen. Sara and Dan have been dating for 2 years, and Sara often comes to Chicago to visit Dan, never staying for more than 90 days. During one of Sara’s trips to Chicago, Dan proposes and Sara says yes. Can they get married right away, so that Sara can apply for her green card and stay with Dan? Yes. Sara can file her adjustment of status at the same time that Dan files the immigration petition (I-130) petition for her.

However, green card applications filed by people present in the U.S. through VWP must be carefully addressed. Preconceived intent is less of an issue than change of status for Canadian citizens, because courts have found that preconceived intent alone does not merit denial of an immediate relative based green card application. Regardless, applicants should still be prepared to document that they did not have preconceived intent. Second, applicants should pay careful attention to timing, and be sure to file their application while they are still in VWP status in the U.S.

Applicants should make it a priority, if they are eligible and decide to file for a green card while in the U.S. on the VWP, to file it within 90 days (180 days for Canadian citizens) of entry. People who enter on the VWP are only allowed to stay for 90 days (180 days for Canadian citizens). After that, they are unlawfully present in the U.S., and can be removed by the government if caught. People who enter on VWP, as a condition of their entry, waive their right to review before an immigration judge prior to removal. A pending application for a green card does not protect an applicant who entered under VWP from removal, unless he filed it before his 90 days (180 days for Canadian citizens) was up. Thus, those who enter under VWP and are eligible for adjustment of status should be careful to file their application before their 90 days is up.

--Authored by Renae Yoo in November 2011

For other information on Adjustment of Status, please click on one of the following topics below:

• What is Adjustment of Status?
• Who is eligible to file an Adjustment of Status application?
• Benefits of applying for Adjustment of Status
• Where should the application for Adjustment of Status be filed?
• Documents are needed for Adjustment of Status
• Information needed for Adjustment of Status
• Medical Examination and Designated Civil Surgeons
• Age Out in Adjustment of Status
• H-1B Status in I-485 Pending Period
• Visa Waiver Program in Adjustment of Status
• Receipt of Certain Public Benefits will NOT Render Alien a "Public Charge"
• FAQs on Public Charge
• Maintaining Legal Permanent Resident Status
• Memo: Be Aware of Abandonment of COS and AOS Applications
• Frequently Asked Questions about Adjustment of Status
• Attorner’s Fees for for Adjustment of Status
• Services that We Provide