Do not change
-Sudhir Shah, Advocate, Mumbai

Law is an Ass and the Immigration Laws of USA are no exception.

The Immigration and Nationality Act, 1952 of USA forbids an alien from having dual and pre-conceived intentions whilst applying for a visa or entering USA. But the very same law also provides for a change of status whilst in USA itself.

If you apply for a Business (B-1) or a Visitor’s (B-2) visa of USA, immigration laws prohibit you from having an intention at the very same time of doing activities other then as a businessman or a visitor in USA. If you have a pre-conceived intention of entering USA on a Business or a Visitors visa and study there or take up a job and if the consular officer entertaining your application for a Business or Visitor’s visa suspects your pre-conceived intention then he will not grant you the business or visitors visa. Similarly an Immigration officer whilst examining your Business or Visitor’s (B-1 or B-2) visa endorsed on your passport at the border, suspect your pre-conceived intention he may not permit you to enter USA.

However the very same laws of USA permit you once you are in USA on a B-1/B-2 visas, to change your status from a Business traveler or a Visitor to a student, an employee, an intra-company transferee and even a religious priest. All that you are required to do is fill up form I-539 and provide a convincing reason to the authority that when you asked for the visa and entered USA you had no other intention other then performing tasks permissible on a Business or a Visitors visa. Thereafter the circumstances have suddenly changed and you are required to change your status from Business or visitor to a student, an employee, a transferee a priest or whatever activity you intend to carry out in USA. Such applications are required to be made after 60 days from the date you entered USA since if they are mad within 30 days they are simply denied on the presumption of a pre-conceived intent. If made after 30 days, but within 60 days, the onus lies upon the Applicant to prove that he had had no such intention when he applied for a visa or entered USA. This normally is difficult to prove. But if the request is made after 60 days no such presumption of pre-conceived intention applies and the application is granted if the reasons are found to be true.

The 30 – 60 day rule makes an applicant with a pre-conceived intention to file form I-539, 60 days after entering USA, and succeed in changing his status. Many, who intend to study or work in USA, but are aware that at the visa interview the consular officer would find out that he lacks the capability to receive the visas opt for applying for business or visitors visa knowing that after entering USA they can change their status.

A USA visa is a stamp placed by the US Embassy or Consulate, situated outside USA, on your passport. After showing the same you can request an entry into the USA and the Immigration Officer may grant you permission to enter USA to carry out activities covered under your visa sign. The activities permitted under the visa are known as status. Each visa has a status attached to it but each status may not have a visa attached to it. When you ask for a change of status in USA your visa is not changed. Infact your visa is gone. With the change what remains with you is the changed status. So after changing your status if you leave USA, to re-enter USA you are obliged to apply to the embassy or consulate to grant you the visa. It is at this point of time that you repent having changed your status in USA. The consular officers invariably suspect that you had a pre-conceived or dual intention whilst applying for the visa and entering USA. Thus despite the Immigration authorities in USA permitting you to change your status, the consular officers deny your visa. The golden rule therefore which normally everyone in their own interest should follow is “Don’t change your status whilst in USA”.