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UNDERSTANDING THE NEW USCIS POLICY TO FACILITATE INTERNATIONAL STUDENTS

2021-08-05
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The Biden administration announced new policy guidance on July 20, 2021, significantly changing international students' treatment in the United States. The new policy aims to eliminate the need to file the "bridge applications" to extend or change the non-immigration status for applicants who have timely filed the Change-of-Status (COS) Applications requesting F-1 status. 

F1 visa is a popular non-immigrant visa status for international students who want to pursue full-time academic courses with any U.S. university. To maintain this special visa status, one needs to complete a full-time course, i.e., 12 credits for undergraduates and nine credits for graduate students. A person may apply at the schools through Form I-20 to obtain an F-1 visa. (Form I-20 is a certificate for eligibility for non-immigrant student status).

What was the old policy?

Under the previous policy, a new applicant must maintain status for up to 30 days before the program starts, listed on their Form I-20. USCIS mentioned that the adjudication of the change of status to F-1 was challenging to align with the different program dates, which often required the applicants to file for multiple extensions so that they do not have a "gap" in status. 

The older policy brought different problems for people filling for change from existing status to F1. Let's first understand the basic guidelines which need to be complied with to file for a change in status. 

1. The applicant must have lawfully admitted to the United States as a "non-immigrant." 

2. The applicant should remain in a valid non-immigration status. 

3. The applicant should not violate the conditions of the non-immigration status. 

4. The applicant should not have committed any crime or engaged in any actions that would make him ineligible for the change of status. 

The scenario becomes problematic if the status expires 30 days before the start of the program. If the current status expires before the 30-day gap period, it was hard to get the status change request accepted by USCIS. As a result, they had to file an application for extension of their present status, along with the F-1 change of status application.

What is the new policy?

The new policy was an outcome of multiple legal battles fought by Attorneys over the years. This issue was brought to the limelight by various Attorneys and was litigated multiple times [Jaradat v. McAleenan et al., 1:19-cv-05320; Khowaja v. Kelly et al., 1:17-cv-03603] in the U.S. District Court for the Northern District of Illinois. The USCIS has denied such Change of Status applications because the applicant failed to file the bridge application after timely filing a Change of Status Application to obtain F-1 status. 

According to the new policy, “To limit costs to applicants and the government, USCIS no longer requires the applicant to submit subsequent applications for extension or change of nonimmigrant status while the COS application to F-1 status is pending with USCIS, provided that the applicant’s non-immigrant status is unexpired at the time of filing the initial COS application and the applicant is otherwise eligible for a COS”. To prevent a 'gap' in status, USCIS will grant the change of status to F-1 effective the day the applicant’s Form I-539, application to extend/change nonimmigrant status is approved. If the application is approved more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time.

Benefits of the new policy

This policy can benefit thousands of children under the H-4 category, reducing administrative burden and multiple filings. This recourse will significantly help children turning 21 on H-4 who have to either transit to an F-1 visa or go back to their home country.  If their course started more than 30 days after their status expired, they would have to file a change of status to a B-2 visa and a change of status to an F-1 visa in order to prevent the Gap in Status.

Taking the cue of the above analysis, this swift change in the immigration policy brings new hope for all the students, as they no longer need to worry about filing for multiple extensions. This practice will help the United States government identify and retain talent, disseminate information, and facilitate status change.  

At the Law Offices of Prashanthi Reddy, we will be happy to help you navigate this new law and help you file your F-1 application. 

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