Revised USCIS Policy Related to Changes from B-1/B-2 to F-1 Status27 Apr 2017
In recent months, the U.S. Citizenship and Immigration Services (USCIS) has reinterpreted a long-existing rule in a manner that impacts applications to change from B-1/B-2 business / visitor status to F-1 full-time student status. The net result is greater uncertainty and expense for B-1/B-2 visitors who wish to change status from within the United States in order to become F-1 status holders.
Background on Filing COS from B-1/B-2 to F-1
Generally, a person may not enter the United States in B-1/B-2 status with the intention of applying for a change of status to F-1 from within the U.S. If, however, a B-1/B-2 visitor forms the intent to attend school while already in the U.S., depending upon the circumstances, it may be possible to apply for a change of status to F-1. Yet, there are some procedural issues one must be aware of before filing such an application, including a relatively recent change with how the U.S. Citizenship and Immigration Services (USCIS) adjudicates these types of applications.
F-1 Application Must Be Approved Before Starting School
An individual in B-1/B-2 status cannot start attending a school or university based on a pending application to change to F-1 status. Rather, the candidate must wait for the application to be approved. This process can take several months. If the application remains pending beyond the requested program’s start date, the designated school official (DSO) is instructed to defer the program start date until the next available term.
Maximum Gap of 30 Days Between B-1/B-2 End Date and Program Start Date
In general, when changing to F-1 status, there may not be a gap of more than 30 days between the date the B-1/B-2 status expires and the start date of the program of study. Until relatively recently, the USCIS counted this gap period as the time between the expiration date of the B-1/B-2 status and the initially requested program start date.
Starting in the summer of 2016, however, immigration attorneys and school officials started receiving reports of USCIS denials based on a gap in status of more than 30 days between the end of B-1/B-2 status and the deferred (not initial) program start date. This prompted the American Immigration Lawyers’ Association (AILA), among other interested professional organizations and individuals, to request that the USCIS return to its previous practice of considering the gap in status based on the original requested date of the start of the program, rather than the deferred start date.
Unfortunately, the USCIS rejected this request, indicating that this apparent shift in policy is consistent with its previous practice. The USCIS has also updated its website to instruct B-1/B-2 visitors to file separate applications to extend their existing status while their respective application to change to F-1 status remain pending. Per the USCIS, an applicant who fails to maintain valid nonimmigrant status throughout the entire adjudication process will have the change of status request to F-1 denied.
B-1/B-2 visitors applying to change status to F-1 face considerable procedural and practical challenges. The issue of preconceived intent is always a hurdle that must be overcome. In addition, the relatively lengthy processing time for these applications, combined with this revised USCIS policy on how the 30-day cap period is calculated, can present problems for such applicants to F-1 student status.
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