USCIS Expands New Policy for Nonimmigrants Changing Status to F-1

The U.S. Citizenship and Immigration Services (USCIS) recently made it even more cumbersome to change status to F-1 full-time student status from within the United States. After implementing a revised policy in early 2017 that requires a B-1/B-2 visitor to maintain continuous B-1/B-2 status while an application to change status to F-1 remains pending, the USCIS now has expanded this restrictive requirement to cover all nonimmigrants applying to change to F-1 status.

Prior Policy on F-1 Change-of-Status Applications

In order for the USCIS to approve a change-of-status (COS) application to F-1 from within the United States, there cannot be a gap of more than 30 days between the date one’s current status expires and the start date of the program of study, as noted in SEVIS. Due to backlogs within the USCIS, F-1 COS applications often remain pending for extended periods. If the application does not receive a decision within 60 days, the system will change the SEVIS record automatically from active to terminated. Therefore, the university typically keeps deferring the start date into the future until the application is approved.

Historically, the USCIS counted the 30-day gap period as the time between the expiration date of the current status and the initially requested program start date, rather than the deferred start date. So, even when a COS remained pending for months beyond an applicant’s I-94 expiration date, the USCIS still could approve the application as long as the program start date initially requested was within the requisite 30-day period.

Change in Policy for B-1/B-2 Applicants

As explained in the MurthyDotCom NewsBrief, Revised USCIS Policy Related to Changes from B-1/B-2 to F-1 Status (27.Apr.2017), the USCIS officially altered course last year for those in B-1/B-2 status applying for a COS to F-1. As of March 2017, a person in B-1/B-2 status is required to maintain valid status until within 30 days of the actual (i.e. deferred) program start date, as opposed to the requested start date, since B-1/B-2 visitors cannot start attending school until the change of status to F-1 is approved. This means that, if a COS application remains pending for months, the applicant must continue to file B-1/B-2 extensions until the F-1 is approved in order to cover the gap.

“Cover-the-Gap” Policy Applied to All Nonimmigrants Changing to F-1 Status

The USCIS now officially has expanded this policy to cover all nonimmigrants changing status to F-1 from within the U.S., even though applicants in most such nonimmigrant statuses have the option of starting to attend school based on the initial program start date as noted on the I-20 form. Reportedly, the USCIS had been applying this policy unofficially with regard to all nonimmigrant statuses since March 2017. This stated policy requires that one maintain valid nonimmigrant status from the point when the COS application is filed until at least 30 days before the actual or deferred start date, whichever is later.

Here is an example of how the process may play out. Ashwin’s H1B status expires in a few weeks. He wishes to enroll in a master’s program, so he applies for a COS to F-1. The requested program start date is within 30 days of the end of his H1B status, but the current processing time for an F-1 COS application is 10 months. Ashwin therefore also has to file a separate COS application, requesting either an extension of his current H1B status or a change to B-1/B-2 status to bridge the gap until the deferred start date of his program of study in SEVIS.

Consular Processing is Faster but has Other Risks

One option to avoid this hassle would be for the nonimmigrant to leave the U.S. and apply for an F-1 visa at a consular post abroad. This eliminates the need for filing any applications with the USCIS, and tends to be a fairly quick process. However, as with any visa application, there is always the risk that a consular officer will refuse the visa.

Conclusion

This change is policy by the USCIS places a completely unnecessary burden on F-1 COS applicants. Moreover, it adds to the caseload of USCIS officers who now have to adjudicate these extra applications. One can only hope that USCIS officials recognize how inefficient this system is and reverse course.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.
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