Aspiring Student? Going from a B1/B2 to an F1

One of the most common changes of status that clients request is to change status from B-1/B-2 Business/Tourist to F-1 student.

The story is a common one, people often come to the United States to spend some time as a tourist and quickly realize that the United States is a fantastic place to study, and many would-be students are especially keen on improving their English.

Fortunately, it is possible to change from B-1/B-2 to F-1 without having to depart the United States, but there are certain requirements that most prospective students are not aware of, and which can lead to serious immigration consequences if not complied with.  This article will go through some common pitfalls that holders of B-1/B-2 visas encounter when attempted to change to the F-1 visa.

 

  1. Applying while “out of status”

When an individual arrives to the United States with a  B-1/B-2 visa, they are given an authorized stay, usually 6 months.  An individual in “in status” as long as the last day of their authorized stay has not passed, at which point they are “out of status” if they remain in the United States.  With some exceptions, individuals must be present in the United States in valid, unexpired status in order to change to F-1 status without having to leave the United States, or have an extension of B-1/B-2 status pending with USCIS.

If an individual has fallen “out of status” because their B-1/B-2 status expired, they may still be able to apply for an F-1 visa abroad through consular processing, but will generally not be permitted to change status from within the United States.

 

  1. Insufficient funds

The law requires that a prospective student have access to sufficient funds to support themselves during the duration of their studies.  If a prospective student lacks sufficient funds, the application will not be approved.  However, the decision as to whether available funds are sufficient or not is made on a case-by-case basis by the adjudicating officer.

 

  1. Lack of a residence abroad without intent to abandon

US authorities worry that F-1 visa holders will use the F-1 visa as a way to come to the United States permanently, not just for temporary studies, thus they require the prospective student to show that they have a home abroad that they do not intend to abandon.  Therefore, we always advise clients who have contemplated selling their home abroad in order to support themselves during their US studies to not do so, as this may render them ineligible to change status to F-1.

 

  1. Applying after the program start date indicated on the form I-20

Upon acceptance to an accredited academic institution, the institution will issue a form I-20.  Among other things, the form I-20 will indicate a program start date.  Some students believe that simply having a validly issued I-20 is sufficient for a change of status to F-1, but this is not always so.  If an individual applies to change status to F-1 after the program start date indicates on the form I-20, even if the I-20 was valid at the time of issuance, the change of status to F-1 will not be approved.

 

What often happens is the following:

Let us suppose that a prospective student receives a form I-20 from their academic institution with a program start date of January 1st.  The prospective student gets caught up in some personal business and ends up not sending their application to change status to F-1 until February.  In this case, the application will be denied, even though the student initially had a validly issued form I-20.

Reason is that the start date indicated on the form I-20 is seen by the Immigration Service (USCIS) as the date that a student intends to begin their studies.  A program start date on an I-20 that is dated before the date that the application to change status was even mailed out will be considered to be improperly filed (since you cannot start classes if have not even applied for a student visa yet!), and may therefore be denied.

 

  1. Failure to maintain lawful status during the 30 days immediately prior to the program start date

Possibly most confusing, is a requirement that valid non-immigrant status be maintained until at least 30 days before the program start date of the on the form I-20.  This means that even in situations where a petition to change to F-1 status is filed with a form I-20 that indicates a start date several months in the future (as it generally should), certain issues may still arise.

Some individuals who wish to change status to F-1 student wait until their B-1/B-2 status is almost expired and only then sent their application to change status to F-1 student, believing that the filing of an application leads to legal status while a decision is made.  This is only partially true, though an individual is entitled to remain in the United States while a decision is made on their pending petition to change status, the underlying B-1/B-2 status can expire.

To change status from B-1/B-2 to F-1, the underlying B-2 status must remain valid until the 30 days immediately before the program start date indicated on the form I-20.

 

This can be better illustrated with an example:

Ahmed is in the United States on a B-1/B-2 visa and wishes to change his status to F-1 student.   His B-1/B-2 status will expire on January 15, and he wishes to start to his studies in June.  Ahmed went and talked to a school that hosts F-1 students and filled out an application for admission with the school.  Ahmed is accepted and tells the school that he wants to begin his studies in June, so he asks for and receives a form I-20 from the school with a program start date of June 10.

Ahmed sends the application to change status to F-1 the day before his B-1/B-2 status expires, on January 14, and expects to remain legally in the United States for 6 more months while a decision is made, then begin classes in June.

While Ahmed is entitled to remain legally in the United States while his application is pending, he nonetheless “falls out of status”, because his underlying B-1/B-2 status expired the day after he sent his application, on January 15, mind you that the program start date on his I-20 is about 6 months in the future, on June 10.

Ahmed’s application to change status to F-1 student will be denied.  He did not meet the requirement of being “in status” during 30 days before the program start date indicated on his I-20 (June 10), because the fell “out of status” on January 15 when his B-1/B-2 status expired.  Ahmed’s application to change status from B-1/B-2 to F-1 is subsequently denied and he receives a letter from USCIS asking him to leave the country.

This could have been avoided by first filing for an extension of his B-1/B-2 status before filing for a change of status to F-1, in order to comply with the rule of being “in status” during the 30 days immediately before the program start date indicated on the I-20.

 

Sadly, this is an extremely common occurrence.  Fortunately however, this situation is also avoidable for many, with proper timing and advice of an immigration attorney.  This hold especially true because extensions of B-1/B-2 status and changes of status to F-1 are adjudicated independently of one another, and the processing times are not always the same.  In certain situations, such as when a B-1/B-2 extension is filed several months before a change of status to F-1 is filed, it may be necessary to file multiple B-1/B-2 extensions in order to be both in status, and for the status to still be valid during the 30 days before the program start date indicated on the form I-20, or after that date.

 

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