The Pitfalls of Changing Status to the F-1 Student Visa
A Procedure in Disarray
There are often cases in which a nonimmigrant in the United States decides that he or she wishes to attend school or enroll in an educational program and therefore change status from one nonimmigrant category to an F-1 student visa. Such cases often occur with temporary visitors in B-1 or B-2 visa categories deciding to engage in educational pursuits. Study in B-1 or B-2 status is strictly prohibited, which is why a change of status (COS) to F-1 student is required before a school program may begin. Generally, as long as an individual is qualified for F-1 student status, such a procedure should be simple enough.
So why isn't it?
A Change in Longstanding USCIS Policy
The Process of Changing Status
It is required that prospective students seeking a change of their nonimmigrant status to that under an F-1 student visa have their intended school's Designated Student Official (DSO) create a Student and Exchange Visitor Information System (SEVIS) record and print a Form I-20, Certificate of Eligibility for Nonimmigrant Status. This form includes essential information describing the school, program of study, dates for attendance, tuition and costs, and should be included with the submitted Form I-539, Application to Extend/Change Nonimmigrant Status to F-1 Student Status.
Where recent applicants are running into issues regarding this process has to do with the school program start dates listed on Form I-120 and possible delays in United States Citizen and Immigration Services (USCIS) processing times. In submitting Form I-539 and its accompanying Form I-20, it is required that such applications be filed before the expiration of a nonimmigrant's current visa status (typically B-2 in these cases) and that the program start date be within 30 days of the current nonimmigrant status expiration.
However, as is often the case, there are lengthy processing delays concerning Form I-539, and SEVIS guidance requires that an intended school's DSO defer the program's start date to a later one if USCIS has not approved the application within five days of the school program's commencement in order to first allow for such adjudication. However, most recently, it takes several deferrals before USCIS processes the case, often creating a gap in the foreign national's immigration status. It is very common in circumstances where the school program has to be deferred that the applicant's underlying status ends more than thirty days before the latest school start date.
Prior to April 2017 and the Present
Prior to recent developments in April 2017, USCIS would understandably rely on the initial start date listed on the I-20 in adjudicating I-539 requests for changes of status to the F-1 visa category. However, this standard has changed and now USCIS is relying on the deferred school program date at the time of adjudication of I-539 to determine whether the foreign national's change of status application may be approved.
Beginning in the spring of 2016, numerous attorneys belonging to the American Immigration Lawyers Association (AILA) began reporting denials of F-1 change of status applications, a pattern that seemed to indicate a new standard in USCIS's adjudications. While the applications were timely submitted prior to the expiration of clients' underlying statuses and the program start dates listed on the I-20 were within thirty days of said expiration, these formerly acceptable applications were now being rejected after delays in processing had forced the program start dates to be deferred outside the allowed time.
USCIS's current position is that the foreign national must maintain his/her nonimmigrant status to within 30 days prior to the deferred school program date, citing 8 CFR §248.1(b), 8 CFR §214.2(f)(5) and the I-539 Form Instructions.
According to Special Instructions for B-1/B-2 Visitors Who Want to Enroll in School posted on USCIS website, an applicant for F-1 Change of Status must file a second Form I-539 in order to bridge the gap in time between when the applicant's current status expires and the 30 day period before the new and latest F-1 program start date.
Specifically, USCIS notes:
You must maintain your B-1 or B-2 status while your Form I-539 is pending. You will need to file a second Form I-539, with a separate fee, to request an extension of your B-1 or B-2 status if:
Your current status will expire more than 30 days before the initial F-1 or M-1 program start date. We may approve your Form I-539 change of status request only if you are maintaining your B-1/B-2 status up to 30 days before your program’s initial start date. If your status will expire more than 30 days before your F-1 or M-1 program’s initial start date, you must file a second Form I-539 requesting to extend your B-1 or B-2 status. If you do not file this extension request on time, we will deny your Form I-539 request to change to F-1 or M-1 status. Please check our processing times to determine if you need to file a request to extend your B-1/B-2 status.
Your F-1 or M-1 program start date is deferred to the following academic term or semester because we did not make a decision on your Form I-539 change of status application before your originally intended F-1 program start date. You must file a second Form I-539 in order to bridge the gap in time between when your current status expires and the 30 day period before your new F-1 program start date.
This change of policy not only introduces a harmful and unsubstantiated dose of uncertainty to the F-1 change of status process, but it causes a multitude of injustices as a result.
Why USCIS Should Reverse Course
USCIS's impromptu change is not only unnecessary, but destructive as well. It often times takes USCIS over 8 months to adjudicate F-1 Change of Status Application, causing multiple deferrals of school start dates. The applicant is then forced to file multiple applications to extend current status, which is costly, burdensome and creates a whole array of hurdles. In addition, there is no statutory or regulatory basis for subjecting applicants to such a burden.
Misinterpretation of Guidance
In justifying its basis for denying the previously mentioned applications, USCIS cites 8 CFR §248.1(b), 8 CFR §214.2(f)(5) and the I-539 Form Instructions. Upon any observation, this reasoning is clearly erroneous.
8 CFR §248.1(b) states that “a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed...” It even goes on to permit USCIS to excuse a nonimmigrant's failure to file in a timely manner if such failure was due to extraordinary circumstances outside the applicant's control, the delay is in proportion with the circumstances and the applicant is not subject to any other grounds of removal.
Furthermore, 8 CFR §214.2(f)(5) declares that “an F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20.” This guidance specifically indicates that it is the date listed on the I-20 that is important regarding the thirty-day rule, not the deferred date due to processing delays.
Finally, Form I-539 instructions explain that "A change of status may be granted for a period up to 30 days before the report date or start date of the course of study listed on Form I-20. You must maintain your current, or other, nonimmigrant status up to 30 days before the report date or start date of the course of study listed on Form I-20 or your requested change of status may not be granted."
These, again, clearly emphasize the program start date listed on the I-20. There is additionally no mention of any alternative procedures for deferred start dates due to processing delays, so this surely cannot be considered to be enough justification for the new "deferred start date" requirement.
Inherent Confusion and Injustice to Applicants
Given the importance of persuasively establishing and maintaining intent in the U.S. immigration system, the requirement to file "bridge petitions" to continue one's underlying status through the deferment of program start dates is unjustifiable. By applying for change of status from a B-2 classification (as is usually the case) to an F-1, a nonimmigrant unarguably announces a change of intent from that of a temporary visitor to a temporary student. If, due to delayed processing of the nonimmigrant's I-539 for change of status and subsequent deferment of the program start date, the prospective student is then required to file for an extension of his or her B-2 status, there is seemingly no possible explanation for how the nonimmigrant is to cohesively explain both the continued intent to visit and intent to be a student in the U.S.
Another murky situation may arise if, for example, a nonimmigrant's change of status to F-1 is approved before an already filed B-2 application for extension. In such a circumstance, unless a B-2 extension is timely withdrawn upon approval of F-1 change of status, it must be wondered whether or not a then-approved B-2 extension of status would supersede the change of status, a nonsensical result but one that may yet be possible given such an illogical USCIS policy.
Case Examples
Looking at the examples of cases filed for a change of status to F-1, it is clearly noticeable that USCIS itself is not prepared to uniformly apply the new policy and that applicants have to endure many novel obstacles created by the bridge petition requirement.
For example, an applicant named Jane entered the U.S. in B-2 status on February 1, 2016. Unfortunately, she was only admitted for ten days due to circumstances that were not known to her. However, she already had traveling plans in the U.S. for the next five months, with all the hotels and planes booked for that entire time, so she filed an application for B-2 extension. While her B-2 extension was pending, Jane traveled to different states and explored possibilities of studying in the U.S. While her B-2 extension application was still pending, she filed an application to change status (COS) to F-1 student. She then received a Request for Evidence (RFE) in connection with the B-2 extension application, questioning her tourist intent at the time of entry and the circumstances surrounding her application for F-1 change of status. She responded to the RFE. It was then July 2017 and both Jane's B-2 extension application and F-1 COS were still pending. Since filing for a F-1 COS, however, the school program's start date was deferred. Following USCIS's new guidance, Jane then filed another B-2 extension request to bridge any gap in time before the new program's start date. While her B-2 remained pending, Jane then received a RFE in connection with the F-1 COS, asking her to provide evidence of maintaining status or asking for proof of another B-2 extension filed to bridge the gap before the deferred school start date. This meant that USCIS B-2 and F-1 adjudications are completely separated and USCIS is not able to see that another B-2 extension was filed unless an F-1 RFE is issued. After responding to the RFE, Jane received an approval for the second B-2 extension. A week later, she received the first B-2 extension and the F-1 COS was approved on the same date.
As can be observed from the real case example above, this new USCIS policy is creating many issues, including prolonged adjudication times, unnecessary RFEs, extra filing fees and puzzling scenarios when both an F-1 COS and B-2 Extension are approved the same day.
These unfortunate ramifications of the policy change undoubtedly demonstrate that USCIS should revert to the former standard of relying on the initial program start dates as listed on the I-20. This is especially true when these described faults are compounded with the fact that USCIS processing times for adjudicating such applications are often in the range of multiple months (sometimes even as high eight or nine months), creating an issue that would be egregious even if applicants were prepared for such a policy change. Because of the problem USCIS created, applicants are subjected to the burden of having to pay for filing fees of bridge petitions that shouldn't even be necessary, and only adding to the USCIS backlog that is causing longer processing times in the first place.
Uncertainty with F-1 COS from Other Nonimmigrant Categories
Interestingly, USCIS is trying to apply an interpretation of the policy permitting only a thirty-day gap between the expiration of the applicant's nonimmigrant status and the deferred school program start date, not only to those nonimmigrants currently in B-1 or B-2 status, but also to all other nonimmigrant classifications.
Such interpretation has not disclosed to the public as the Special Instructions on F-1 COS posted on USCIS website specifically apply ONLY to B-1/B-1 holders. Reports have circulated among immigration attorneys that USCIS is denying change of status applications filed from other nonimmigrant classifications, such as H-4, O-3, etc.
In these cases, USCIS again references 8 CFR §248.1(b), 8 CFR §214.2(f)(5) and the I-539 Form Instructions to state that because the applicant's underlying status expired thirty days prior to the deferred school start date, the change of status cannot be approved.
It is important to note however that applicants in many other nonimmigrant categories may enroll in school programs before F-1 COS is approved. This is why the Special Instructions for Change of Status only refer to B-1/B-2 holders since they are not allowed to enroll in school before F-1 is approved. Therefore, it is only logical to conclude that, because USCIS made a special note for B-1/B-2 visa holders changing status to F-1, it only intends that the new policy should apply to those temporary visitors and not to any other nonimmigrant classifications.
If we assume otherwise and accept that USCIS wanted its new policy to apply to all classes of nonimmigrants changing status to F-1, then USCIS should have provided public notice of such a policy change. Moreover, extension of this policy to other nonimmigrant classes would most certainly not be justified given the fact that these nonimmigrants are not required to wait for F-1 approval and can enroll in school before the COS decision is made on the case.
A Debacle that is Easily Fixable
From judgment of these observable faults within USCIS policy requiring applicants to file bridge applications maintaining their underlying status after their program start dates are deferred, it would be unjust if USCIS were to continue to ignore such contradictions and continue its current trajectory.
It is logically clear that relying on the program start date listed of the Form I-20 was the correct practice, and USCIS should return to adjudicating F-1 change of status applications in that regard. If it does not, the uncertainty of its current policy will continue, as will injustice and undue burden to applicants.