Chapter 4 - Extension of Stay and Change of Status

A. Nonimmigrants Seeking Extension of Stay or Change of Status

Generally, certain nonimmigrants present in the United States admitted for a specified period of time may request an extension of their admission period in order to continue to engage in those activities permitted under the nonimmigrant classification in which they were admitted.^[1]

Also, certain nonimmigrants present in the United States may seek to change their status to another nonimmigrant classification if certain requirements are met.^[2]

An application for an extension of stay (EOS) or change of status (COS) is generally filed on a Petition for a Nonimmigrant Worker (Form I-129) or Application to Extend/Change Nonimmigrant Status (Form I-539),^[3] depending upon the nonimmigrant classification the applicant seeks to extend or change.^[4]

B. Public Benefits Condition^[5]

The public charge ground of inadmissibility does not apply to nonimmigrants seeking either an EOS^[6] or a COS^[7] in the United States. ^[8] 

However, to ensure that nonimmigrants remain self-sufficient while present in the United States,^[9] applicants seeking EOS and COS are subject to the public benefits condition, unless the status the applicant seeks to extend or to which they seek to change, is statutorily exempt from the public charge ground of inadmissibility. ^[10]

The public benefits condition requires an applicant seeking EOS or COS on or after February 24, 2020 (postmarked or if applicable, submitted electronically on or after that date) to demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits,^[11] for more than 12 months in the aggregate within any 36-month period (where, for instance, receipt of two public benefits in 1 month counts as 2 months). USCIS only considers public benefits received on or after February 24, 2020 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.^[12]

The officer should review the information provided with the application or petition, as well as the information contained in the file and systems, to determine whether there is any indication that the alien has received, since obtaining the nonimmigrant status he or she seeks to extend or change from, any of the listed public benefits. An officer may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) as needed, in accordance with current USCIS policy.

1. Exemption^[13]

This public benefits condition does not apply if:

• The nonimmigrant classification the alien seeks to apply for, extend, or change to, is exempt from the public charge inadmissibility ground by law or regulation;^[14]

• The public charge ground of inadmissibility has been waived for purposes of the nonimmigrant status that the alien seeks to extend or from which the alien seeks to change; or

• The applicant filed the request for EOS or COS before February 24, 2020 (postmarked date).

For a list of aliens subject to the public charge condition at the time of the application or petition for EOS or COS, refer to Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition.

2. Evidence

If the public charge condition applies, the applicant must demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits, for more than 12 months in the aggregate within any 36-month period.^[15] If the applicant has received, since having obtained the nonimmigrant status, one or more public benefits for more than 12 months, in the aggregate, within any 36 month period, USCIS must deny EOS or COS, even if the applicant otherwise meets the requirements of the nonimmigrant classification.^[16]

The officer should review the statements and documentation provided in the Form I-539 or Form I-129 to determine whether the alien has received public benefits in excess of the regulatory threshold.^[17] If the applicant has been certified to receive public benefits in excess of the threshold at the time of filing of the application or petition but had not yet received the benefits, the officer must review whether the applicant has received more than 12 months of public benefits at the time the application or petition is adjudicated and finalized.

3. Decision

Denial

If the alien seeking COS or EOS has received public benefits at the time of adjudication exceeding the threshold limitation, the officer should deny the EOS or COS request for lack of eligibility based on not meeting the public benefits condition.

Approval

If the alien seeking EOS or COS has not received public benefits exceeding the threshold, the officer must continue to review all other requirements to determine whether the applicant is eligible for the nonimmigrant classification requested or the EOS or COS request.

C. Step-by-Step Overview: Determining Whether Applicant Meets Public Benefits Condition

The following is an overview of the steps an officer should take to determine whether the alien meets the public benefits condition.^[18]

Footnotes

[^ 1] See 8 CFR 214.1(a). See 8 CFR 214.1(c) for general requirements, such as those relating to passport validity and waivers of inadmissibility for an EOS. 

[^ 2] See INA 248. See 8 CFR 248.

[^ 3] See 8 CFR 214.1(c). The application should be filed in accordance with the form instructions.

[^ 4] See Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition for a full list. The instructions for Form I-539 and Form I-129 provide detailed information regarding who may file each form. Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A) or Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW) may also be filed where applicable.

[^ 5] See 8 CFR 214.1(a)(3)(iv). See 8 CFR 248.1(a). See 8 CFR 248.1(c).

[^ 6] See 8 CFR 214.1.

[^ 7] See INA 248. See 8 CFR 248.

[^ 8] See INA 212(a)(4).

[^ 9] See 83 FR 51114 (PDF) (Oct. 10, 2018) (proposed rule). See 84 FR 41292 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction). See 8 CFR 213.1(a)(3)(iv). See 8 CFR 248.1(a). See 8 CFR 248.1(c).

[^ 10] See 8 CFR 212.23.

[^ 11] As described in 8 CFR 212.21(b). For a list of what public benefits USCIS considers, see Volume 8, Admissibility, Part G, Public Charge, Chapter 10, Public Benefits [8 USCIS-PM G.10]. For more on when an alien is deemed to have received public benefits, see Volume 8, Admissibility, Part G, Public Charge, Chapter 9, Assets, Resources and Financial Status, Section A, Standard, Subsection 8, Application for, Certified to Receive, and Receipt of Public Benefits [8 USCIS-PM G.9(A)(8)].

[^ 12] See 8 CFR 214.1(a)(3)(iv) and 8 CFR 248.1(a).

[^ 13] See Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition.

[^ 14] See 8 CFR 212.23.

[^ 15] For example, the receipt of two public benefits in 1 month counts as 2 months.

[^ 16] If the EOS or COS application or petition is denied, the alien must depart the United States and process the visa abroad where he or she will be assessed for public charge grounds of inadmissibility as part of the Department of State visa application process and upon entry into the United States.

[^ 17] For more information on receipt of public benefits, see Volume 8, Admissibility, Part G, Public Charge, Chapter 9, Assets, Resources and Financial Status, Section A, Standard, Subsection 8, Application for, Certified to Receive, and Receipt of Public Benefits [8 USCIS-PM G.9(A)(8)].

[^ 18] See 8 CFR 214.1(a)(3)(iv) (EOS). See 8 CFR 248.1(a) and 248.1(c)(4) (COS).