Filing on Form I-129

An employer seeking the services of an E-1, E-2, H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TC nonimmigrant beyond the period previously granted, must petition for an extension of stay on Form I-129. The petition must be filed with the requisite fee and evidence. Dependents holding derivative status may be included in the petition if it is for only one worker and the form version specifically provides for their inclusion. In all other cases dependents of the worker should file on Form I-539.

Filing on Form I-539

Any other nonimmigrant alien, except an alien in F or J status who has been granted duration of status, who seeks to extend his or her stay beyond the currently authorized period of admission, must apply for an extension of stay on Form I-539 with the requisite fee and evidence. More than one person may be included in an application where the co-applicants are all members of a single family group and either all hold the same nonimmigrant status or one holds a nonimmigrant status and the other co-applicants are his or her spouse and/or children who hold derivative nonimmigrant status based on his or her status. Extensions granted to members of a family group must be for the same period of time. The shortest period granted to any member of the family shall be granted to all members of the family.

Ineligible for extension of stay

A nonimmigrant in any of the following classes is ineligible for an extension of stay:

• B-1 or B-2 where admission was pursuant to the Visa Waiver Pilot Program;
• C-1, C-2, C-3;
• D-1, D-2;
• K-1, K-2;
• Any nonimmigrant admitted for duration of status with some exceptions.

Timely filing and maintenance of status.

An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed. The failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

• The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
• The alien has not otherwise violated his or her nonimmigrant status;
• The alien remains a bona fide nonimmigrant; and
• The alien is not the subject of deportation or removal proceedings.

Decision in Form I-129 or I-539 extension proceedings.

Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of the Service. There is no appeal from the denial of an application for extension of stay filed on Form I-129 or I-539.

Termination of status.

Within the period of initial admission or extension of stay, the nonimmigrant status of an alien shall be terminated by the revocation of a waiver authorized on his or her behalf, by the introduction of a private bill to confer permanent resident status on such alien, or, pursuant to notification in the Federal Register, on the basis of national security, diplomatic, or public safety reasons.