By Maud Poudat | US Immigration Attorney
Posted: November 27, 2017
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 student visa.
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.
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.
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.