Significant Policy Shift for F-1 Change of Status Applications with USCIS
Recently, USCIS announced a major change in policy related to applications to change status from any other immigration status to F-1 student status.
Change of status is a technical process managed by the US Citizenship and Immigration Services agency of the Department of Homeland Security in which a person who came into the US on a visa for a certain immigration status seeks to change that status to another nonimmigrant status. One example of a change of status is when someone enters the US as a B-2 visitor, finds a school that accepts them for admission and study, and files to change status to F-1 student.
The Trump administration put in place a policy specifically designed to increase the burden and cost of the B-2 visitor to F-1 student change of status process. Currently, USCIS takes approximately 10-12 months to process an application for change or extension of status, Form I-539. If a person enters on a B1/B2 visitor visa, generally the person is given 6 months of time or “status” to be in the US after successfully completing inspection. After a recommended waiting period of 90 days to file an application to change status to F-1 student, that leaves the person in status for only 3 more months. Obviously, with so little time between the expiration of the B-2 status and the adjudication of the I-539 Application to change status to F-1, the person will go out of B-2 status.
In other change of status scenarios, that issue doesn’t matter. The law says that as long as a person is in valid status at the time the change of status application is filed, the person remains authorized to be in the US and approvable for the change of status when the decision is finally made. The Trump administration changed the rules in this context only – changing status to F-1.
Initially, the policy change appeared to only apply to changes of status from B-2 visitor to F-1 student. However, in practice, USCIS applied the same policy to changes of status from other statuses, such as H-4 dependent of H-1B, E-2 dependent of E-2 and J-1 foreign exchange visitor, to name a few.
It was a cumbersome policy that had only one goal – to discourage people from filing to change status to F-1 by making it far more burdensome. And it has the desired effect.
No More Extra Barriers When Changing Status to the F-1 Visa
Now, with basically the wave of a wand, the policy has changed back to the way it was pre-Trump. Now a person filing to change status to F-1 is treated the same as any other change of status request. The effect of the change is that now a person can file the application to change status prior to the expiration of the status the person is changing from, and stay in the US in authorized presence until a final decision is made on the application. Also, the change of status can now be granted.
If you were discouraged by an attorney or a school from filing for a change of status to F-1, that has now been completely turned on its head. Please consider taking advantage of this favorable change and file to change status to F-1.
Traveling after Changing Status
As a final thought, let me remind the readers of this article of the consequences for changing status to F-1. Changing status does not result in the issuance of a new visa. A visa is a document that a US consulate stamps into a person’s passport that allows the person receiving the visa to seek admission to the US through inspection.
USCIS does not issue visas to travel to the US on US soil. Plus visas are classification-specific. In other words, having a B1/B2 visitor visa does not allow a person to seek admission as an F-1 student, only as a B1/B2 visitor. So if a person has changed status from B-2 to F-1, that person cannot travel outside the US and return to resume studies as an F-1 student. The person would have to apply for a new F-1 visa from the US consulate.
Those can be very difficult to get. The US consulate expects people to whom they issue visas to use those visas for the specific purpose of the visa. Changing status while in the US is 100% legally authorized by law. But the US consulate is not a fan of the practice. If you have changed status to F-1 student from, say, B-2 visitor and try to get an F-1 visa from the US consulate, the chance that they will deny that request is very high.
F-1 Visa Processing Times
Another consequence is that it still takes about 10-12 months for USCIS to process the requested change of status to F-1. The applicant will have to find something to do for that 10-12 months waiting for the result. Working without authorization makes the person ineligible for the change of status and if discovered will result in the application being denied. And the applicant cannot attend school in the meantime if changing status from B-2 visitor. A person considering doing this would need to think about what to do for the 10-12 months it takes to get the decision on the change of status.
Considering these two issues – the lack of travel authorization and the time horizon for the decision – changing status does not make sense in every situation. But at least with the policy change, people should be encouraged by the removal of the many barriers the Trump administration put up against the practice.
About Davis & Associates:
Davis & Associates is the immigration law firm of choice in Houston & North Texas including Dallas, Fort Worth, Plano, Frisco, McKinney and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.
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