Form I-539, Explained

Form I-539 Costs and Fees

Updated Filing Fees for Form I-539

As of April 1, 2024, the USCIS has implemented new fees for filing Form I-539. The fee for online submissions is now $420, while paper filings have increased to $470. These fees apply to all submissions postmarked from April 1, 2024 onwards. In addition, applicants opting for premium processing will need to pay $1,965. 

Removal of Biometrics Fee

As of October 1, 2023, the USCIS has removed the $85 biometrics services fee previously required with Form I-539. You should no longer include this fee with your application. If you mistakenly send the biometrics fee separately, the USCIS will return the payment and process your application normally. However, if you combine the biometrics fee with the application fee in a single payment, your application will be considered incorrect and thus rejected. In cases where you mistakenly authorize a credit card payment that includes the biometrics fee, the USCIS will only charge you the application fee.

Current Filing Instructions

The USCIS no longer accepts combined payments for multiple forms. This specifically affects applicants submitting Form I-539 together with Form I-765, I-824, or I-129. Additionally, a policy update from 2021 has revised the instructions for F1 students on page 4 of the Form I-539 instructions.

Form I-539 Application Timeline

USCIS advised that you should submit their Form I-539 at least 45 days before your current status expires or as soon as you realize the need to extend or change your visa status. However, 45 days is a safe choice. According to our clients experience, if you choose online filing, you will receive the USCIS receipt on the day of submission. In this case, you only need to submit the I-539 and supporting materials before your current status expires. If you choose to file by mail, it generally takes 5-10 business days to receive the USCIS receipt. Therefore, it is recommended to mail out the I-539 and supporting materials two weeks before your current status expires.

If you fail to file Form I-539 before your current status expires, this may result in rejection. However, USCIS may accept your application in certain cases. You’ll need to demonstrate that:

Failed to file the application before your status expired? Connect to an immigration attorney to discuss your case.

How Long Does It Take to Get Form I-539 Approved?

The processing time for Form I-539 can range from 3 to 8 months based on the type of status you request. Please note that these processing times can vary due to various factors, including the USCIS service center where your application is processed. 

Can I Travel Abroad While Form I-539 is Pending?

No, you can't travel abroad while your I-539 application is pending vary depending on your visa type. For example, if a B1/B2 holder leaves the United States while their I-539 is pending, the USCIS will consider the application to be abandoned. Similarly, an F1 student who leaves the country during this period will be required to reapply and pay the filing fees again if they wish to proceed with the application.

Can I Stay in the US While Form I-539 is Pending?

If you apply for a visa extension or change of status before your I-94 expires, you can remain in the United States for up to 240 days while your I-539 application is processed. During this period, you must adhere to the conditions of your current visa, including any restrictions on working or studying. If your application is denied, you’ll need to leave the United States either immediately or by your I-94 expiration date.

Can I Work or Study While Form I-539 is Pending?

No, you cannot work or study while your I-539 application to change or extend your nonimmigrant status is pending with USCIS. During the time your I-539 is pending, you must continue to abide by the terms and conditions of your current nonimmigrant status.

This means that if your current status does not permit employment or study, you will not be authorized to work or attend school until your I-539 application has been approved and you have successfully changed to the new nonimmigrant status that allows for employment or study.

You can only start working or studying after USCIS has adjudicated and approved your I-539 application, and you have transitioned to the new nonimmigrant status that permits those activities. Working or studying without proper authorization while your I-539 is pending could be considered a violation of your current status and could potentially lead to adverse consequences for your immigration situation.

What Happens After Form I-539 is Approved?

You will receive the official notice of approval (Form I-797) from USCIS for your Form I-539 application. If you file I-539 online, you will receive the form I-797 both online and by mail. If you file I-539 by mail, you would only receive the paper version of I-797.

The required supporting documents for filing Form I-539 can vary by individual case and visa status, but they generally include proof of your current legal status, evidence of financial support, copies of passports, and any previous U.S. immigration forms:

• Copy of passport identity page: For yourself and each dependent, include the photo ID page of the passport.

• Copy of latest I-94 record: For yourself and each dependent, include the most recent I-94 record showing entry and status in the United States.

• Copy of latest nonimmigrant visa: Include a copy of the latest nonimmigrant visa from your and your dependents’ passports, if applicable.

• Copy of approval notices: If applicable, include copies of any H4, L2, O3, or TD approval notices.

• Proof of employment: Provide proof of your employment, such as your two most recent earnings statements or an employment verification letter from your employer.

• Proof of relationship: Include documents showing your legal relationship to each dependent, such as a marriage certificate for your spouse and birth certificates for your children. Remember to include a certified translation if needed.

• Documents for dependents’ change of status: If a dependent is changing from a work-authorized status (such as H1B, L1, or O1), include copies of any I-797 approval notices and recent earnings statements.

• Explanation Letter: An explanation letter is a document that must be included with the I-539 application for a change or extension of nonimmigrant status. In this letter, the applicant is required to present a compelling and well-reasoned justification for their request to change their current nonimmigrant status after arriving in the United States.
  The purpose of the explanation letter is to provide convincing reasons and explanations for the desired change in status, as it will be carefully scrutinized by U.S. Citizenship and Immigration Services (USCIS) officers during the adjudication process.
  A well-crafted explanation letter can significantly enhance the chances of approval for the I-539 application by offering a strong and credible rationale for the applicant's decision to change their nonimmigrant status. Check out our guidance on how to write a explanation letter on your own

Can You File Form I-539 Online?

There are two ways to file Form I-539 for a change of status application - one is through online submission, and the other is the traditional paper mail method. Currently, except for cases where H1B visa holders change to other statuses (such as changing from H-1B to F-1 student status or B-2 visitor status, which require paper mail submission due to ongoing disputes regarding online filing), other cases that require filing Form I-539 for a change of status can generally be completed through online electronic document submission.

Pros and Cons of Online Filing and Paper Mail

Common Reasons for Getting RFEs

Reason One: Violate the 90-Day Rule

What is the 90-Day Rule?

Some people change their intent after entering the United States. For instance, someone might enter on a B visa intending to tour but then decide to stay for education after seeing the quality of the American education system. It's normal for people to change their plans, so changing your intent after entering doesn't automatically prove you lied about your purpose when applying for the visa or at entry. However, USCIS is strict about matching your entry intent with the visa type you hold, which is why the 90-day rule was established. This rule serves as a timeframe to help USCIS officials better assess whether applicants were honest about their intentions when they entered the U.S.

Official Explanation:

"Nonimmigrant visa holders should avoid engaging in activities inconsistent with their stated entry purpose or submitting a status change application within 90 days of entry."

Important Timing for Status Change:

• Within 30 days of entry: Submitting a status change application within 30 days is likely to be seen as evidence of initial misrepresentation of intent, and the application may be denied.
• 30-60 days of entry: This is a gray area; the application may be denied, but with a reasonable explanation, approval is possible.
• After 90 days of entry: Applications submitted after 90 days are generally not seen as evidence of misrepresentation, and the success rate is high.

Specific Details on the 90-Day Rule:

For more specific details, refer to the FAM guidelines.

Exemptions:

Some nonimmigrant visa types with dual intent, such as O-1, H-1B, or L-1, are not subject to this rule. It's recommended to consult with an immigration lawyer to understand if your visa type is affected.

Case Study - Client A

Client A planned a trip to the U.S. with meticulous detail, even booking flights and hotels before the visa interview. His clear intent to tour the U.S. was not questioned by the visa officer, and he was quickly granted a B visa and successfully entered the U.S.

During his stay, Client A reconnected with a high school friend who had been studying in the U.S. The friend showed him around and shared his experiences, which inspired Client A to pursue a U.S. degree. Client A promptly applied to a US university and was accepted. Understanding that he couldn't study on a B visa, he began the status change process. However, shortly after submitting his application, he received a Request for Evidence (RFE) from USCIS, asking for the date he first contacted the school.

With the help of our lawyer, Client A wrote an explanation letter. He admitted contacting the school within 90 days but emphasized his initial intention was genuinely tourism. He provided evidence of his travel plans and hotel bookings and explained why he chose to enroll immediately instead of returning to China for an F-1 visa. His thorough response led to a successful status change from tourist to student.

Reason Two: Illegal Work Records

What Constitutes Illegal Work?

Engaging in any work without proper authorization, whether paid or unpaid, constitutes illegal work. If there is a record of illegal work, it significantly lowers the chances of a successful status change.

Typical Scenarios:

• No SSN or Payroll Records: If no SSN or payroll records exist, the work may go unnoticed.
• SSN Provided, No Pay Exceeding $600: You may need to write an explanation letter but generally don't need to worry much.
• SSN Provided, Pay Exceeding $600: This is more problematic. You may need to consider negotiating with the employer to delete the records in exchange for returning the pay or provide detailed explanations.

For more details, see the Cornell Law page.

Case Study - Client B

Client B applied for CPT but mistakenly started working before receiving proper authorization. He discovered the oversight months later and honestly disclosed his situation to his employer, who refused to correct the records. Post-graduation, Client B sought to change his status from F-1 to B visa. Our lawyer helped him craft a detailed explanation, including communication records with the school and the employer. Despite the illegal work, his status change was approved without an RFE.

Reason Three: Failure to Maintain Valid Status

Maintaining Valid Status:

USCIS requires maintaining your current status until the new status is granted. Ideally, the previous status should be maintained until the new one is in effect. If not, the period between the expiration of the old status and the approval of the new status will be considered "Out of Status," potentially affecting future immigration applications.

Specific Rules for Different Applications:

For example, transitioning to an M-1 visa requires maintaining status until 30 days before the program start date. If the previous status expires before this, a status extension or temporary change to another status is needed.

Case Study - Client C

Client C, an H1-B holder, lost his job and sought to change to F-1 status. Delays in receiving a school acceptance led to a lapse in his H1-B status. With help from our lawyer, he provided evidence of timely communication with the school and mitigating circumstances, including health issues, to justify the delay. His application was eventually approved.

Reason Four: Immigration Intent

Determining Nonimmigrant Intent:

USCIS may reject applications if they suspect the intent is to stay permanently without reasonable cause for continuing to stay. The I-539 form includes questions about past I-485 applications, which can trigger additional scrutiny.

Case Study - Client D

Client D, an H1-B holder, applied for F-1 status after losing his job. Although he had previously filed an I-140, he did not disclose this during his status change application. With our attorney help, USCIS approved his application without requesting additional evidence.

Reason Five: Insufficient Financial Resources

Proving Financial Capability:

Applicants, especially those seeking F-1 status, must prove they have enough funds for tuition and living expenses. Assets like stocks and real estate can be included, and young applicants may use family funds as proof.

Reason Six: Criminal Record

Impact of Criminal Records:

Applicants must disclose any arrests or convictions, including detailed explanations and evidence of subsequent changes. Experienced immigration lawyers can help highlight mitigating factors to persuade USCIS officials.

How to Respond to RFE

Upon receiving an RFE, applicants must reply within the specified timeframe (usually mentioned in the RFE notice) and provide the additional materials requested by USCIS. Failure to respond timely or adequately could lead to application denial. If your case is complicated and urgent, having reliable legal assistance throughout the application is crucial. 

Common Reasons of Form I-539 Application Denials

Change of Status applications generally have a high success rate. However, common reasons for denials include:

• Travel while application is pending: Leaving the U.S. can be seen as abandoning your application. While you can submit an explanation letter, it doesn't guarantee your application won't be canceled by USCIS.
• Ineligible visa categories: Some visa categories, such as C, D, K, S visas, and certain J-1 visas (subject to the 212(e) home residency requirement), do not allow for a change of status.
• Expired status: If your current status expires before approval, your application is likely to be denied. This includes the end of the H-1B grace period or the expiration of L-1 visas.
• Not meeting requirements: Insufficient documentation, such as financial evidence for F-1 visas or untimely SEVIS fee payment, can lead to denial.
• Incomplete/incorrect forms: Errors or missing information on the I-539 form can result in rejection.
• Suspicion of immigrant intent: Applications may be denied if officials believe you intend to immigrate permanently.
• Inconsistent documents: Contradictions between your application and supporting documents can raise suspicions of fraud.

What to Do If My Form I-539 is Denied 

If your Form I-539 application is denied, you have several options to consider, depending on your specific circumstances.

Reapply After Denial

If your Form I-539 was denied due to a technical error on your part, you may correct the mistake and submit a new application for the same or a different nonimmigrant status.

Appeal the Decision

If you believe the USCIS denied your application in error, you may be able to appeal the decision. Not all application types are eligible for appeals, so make sure you confirm that this option is available for your specific situation.

Motion to Reopen to Reconsider

If new evidence emerges or if the original decision failed to consider all relevant evidence, you may file a motion to reopen or reconsider your case. This provides you with an opportunity to present new information that could change the outcome.