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DHS Revises Immigration Policy Involving The Changing Of Status From B-1/ B-2 Visitors To F-1 Student Visa

2017-06-12
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In April 2017, USCIS announced changes to the then-current interpretation of the rules dealing with the changing of status from B-1/B-2 to F-1 (academic student visa) or M-1 (vocational student)visa. Not only has this change made it more expensive for B-1/B-2 visitors, who wish to study in the U.S., to change status, it has also increased the air of uncertaintythat already surroundedthe changing of status from B-1/B-2 to F-1/M-1.

Special Instructions : 

While a foreign national with a B-1/B-2 may not enter the United States with the intention of changing his or her status to F1 Student Visa USA , a B-1/B-2 holder can apply for a change of status to become an F-1 visa holder if he or she forms the intent to enroll in school while in the United States, dependent on certain circumstances. If an individual onB-1 or B-2 visa desires to enroll in a school or university, he or she will have to apply for a change in status before doing so.

Can an Individual Enroll in a School While ona B-1 or B-2 Visa?

No, it is not permitted. According to regulations (8 CFR 214.2(b)(7)), a visitor on the B-1 or B-2 visa is not allowed to enroll in a school for a course of study in the U.S. The individual will need to wait for the F-1 or M-1 application to be approved before the individual can enroll in a school or university.

Before enrolling in a school for a course of study, the B-1/B-2visitor has to acquire an F-1 (academic student visa) or M-1 (vocational student) visa. Failure to do so will effect a status violation. This means the individual on B-1 or B-2 status who has violated his or her status through the enrollment in a school cannot extend the B-1/B-2 status, or change his or her status to M-1 or F-1. There are no exemptions to this rule. Because processing of change in status can take months, it can happen that the application will be pending while the requested program’s start date passes. If that happens, the designated school official is instructed to defer the program of study’s start date to the next available offering.

How Does An Individual withB-1 Or B-2 Nonimmigrant Status Obtainan F-1 Or M-1 Status?

Anindividual is eligible to apply to change to either F-1 or M-1 status if –

A- The individual has not enrolled in a course of study;
B-The individual’s current B-1 or B-2 nonimmigrant status has not expired; and
C-The individual has not worked while in the U.S. without a valid EAD.

The individual will first have to file a Form I-539. Of course, required payment and documentations have to be included as provided by instructions.

While the Form I-539 is pending, the individual needs to maintain his or her B-1 or B-2 status. For this reason, the individual needs to file another Form I-539, which includes separate fee requesting for an extension of his or herB-1 or B-2 status if:

A-The gap between the date the individual’s B-1 or B-2 nonimmigrant status expiration and the start date .

B-The program start date is deferred to another semester or term because processing of the Form I-539 change of status applicationwas not completed and a decision was not made before the start of the individual’s originally intended F-1 or M-1 program of study start date.

 

Previously, the USCIS calculated the 30-day gap as the period before the expiration of an individual’s B-1 or B-2 nonimmigrant status and the initial program start date of the requested program and not the deferred start date. Not anymore.

As per the special instructions from USCIS, all applicant must maintain a valid B-1 Visitor For Business Visa or B-2 status through the whole adjudication procedure. Failure to do sowill lead to a denial of the change of status request.

What Should theB-1 orB-2 Nonimmigrant Status Holder Do, If He or She Is Ineligible to Change Status?

If the individual is ineligible to change the B-1 or B-2 status while in the U.S., the individual may need to apply for the F-1 or M-1 nonimmigrant visa at a U.S. consulate..

In Conclusion

The revision of the USCIS policy considering the 30-day gap has further added to the existing procedural and practical challenges (including lengthy adjudication processes and the issue of preconceived intent) faced by B-1 or B-2 nonimmigrant status holders who seek to enroll in a school or university while in the U.S.

Read also- DHS final rule on retention of immigrant workers & improvements affecting high-skilled nonimmigrant workers

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