Analysis: Extending a Vacation Stay in the United States Under Federal Immigration Law

By Brian Figeroux, Esq. 

When a foreign national is visiting the United States on a temporary basis, such as for tourism or vacation purposes, they may sometimes wish to extend their stay beyond the period initially granted by U.S. Customs and Border Protection (CBP). Under federal immigration law, extending a vacation stay in the U.S. requires submitting a request to U.S. Citizenship and Immigration Services (USCIS). This analysis explores the process for obtaining an extension of stay for a tourist (B-2 visa holder) or Visa Waiver Program (VWP) entrant, the legal requirements, and provides a comprehensive checklist of supporting documents needed for a successful application.

1. Overview of Extending a Stay in the United States

Visitors to the United States typically enter under two primary categories for tourism or vacation purposes:

1. B-2 Tourist Visa Holders: These are individuals who have obtained a B-2 non-immigrant visa for tourism, pleasure, or medical treatment. The B-2 visa is usually valid for up to six months, but the actual length of stay is determined by CBP at the port of entry.
2. Visa Waiver Program (VWP) Entrants: Citizens of certain countries can enter the U.S. for tourism or business purposes without a visa under the Visa Waiver Program. VWP entrants are generally allowed to stay in the U.S. for up to 90 days and cannot extend their stay under normal circumstances.

2. Eligibility for Extension of Stay

Under U.S. immigration law, the ability to extend a vacation stay depends on the visitor’s current status:

2.1. B-2 Tourist Visa Holders

• Eligibility Requirements:
  • A B-2 visa holder can apply for an extension of stay if:
    • They were lawfully admitted to the United States as a non-immigrant.
    • They have not committed any crimes that would render them ineligible.
    • Their visa status remains valid, and the request is made before the expiration date on Form I-94 (Arrival/Departure Record).
    • They have not violated the conditions of their admission (e.g., by working without authorization).
    • They can demonstrate that they have a valid reason for extending their stay (such as needing more time to complete planned travel or due to unforeseen circumstances like illness).
• Duration of Extension: Typically, extensions for a B-2 visa are granted in increments of up to six months.

2.2. Visa Waiver Program (VWP) Entrants

• Eligibility for Extension:
  • VWP entrants are generally not eligible for an extension of stay. However, there are limited exceptions:
    • If a VWP entrant cannot depart the United States due to an emergency, such as a medical issue, a request for “Satisfactory Departure” can be made. If granted, this allows an additional stay of up to 30 days without penalty.

3. Process for Extending a Stay in the United States for B-2 Visa Holders

The process of extending a stay for a B-2 visa holder involves submitting a formal request to USCIS using the appropriate forms and supporting documentation. The following steps outline the process:

Step 1: File Form I-539, Application to Extend/Change Nonimmigrant Status

• Purpose of Form I-539: This form is used by individuals who are in the U.S. on a non-immigrant visa and wish to extend their stay or change to another non-immigrant status.
• Where to File: Form I-539 can be filed online or by mail to the appropriate USCIS service center. The filing location is determined by the applicant’s current residence and the instructions provided by USCIS.

Step 2: Pay the Filing Fee

• The current filing fee for Form I-539 is $370, plus an additional $85 biometrics fee for capturing fingerprints and a photo. Fees are subject to change, so applicants should check the USCIS website for the most current fees.

Step 3: Submit Supporting Documents

Along with Form I-539, applicants must submit supporting documents that provide evidence of their eligibility for an extension of stay. The checklist of required documents is provided in Section 4 of this analysis.

Step 4: Attend Biometrics Appointment

• After filing Form I-539, USCIS will schedule a biometrics appointment for the applicant, where their fingerprints, photograph, and signature will be collected. This is required for background checks and identity verification.