Changing to Student Status while in the U.S. – Do’s and Don’ts
October 15, 2004
To be issued an F-1 student visa at a US consular post outside the US, an applicant must prove, among other things, that a) she has been admitted to an accredited educational program (by presenting a Form I-20 issued by the institution), 2) that funds are available to pay for the program and 3) that she intends on returning to her home country following completion of the program. As is the case for visitor visa applicants, it’s usually that last prong that leads to visa denials.
But what about those already in the US in some other legal status, such as B-1/B-2 visitor (and excluding visitors on the visa waiver program), who seek to commence an educational program and change their nonimmigrant status to F-1 student without departing the US? An avenue indeed is available for those seeking such a change of status, but applicants are advised to be very careful in how they go about filing their change of status application.
The appropriate form is I-539, and the attached instructions direct applicants are instructed to enclose various pieces of supporting documentation with their applications, including a) evidence that they have been admitted to an accredited educational program (Form I-20, again, issued by the school), b) evidence of the financial status of their sponsor (Form I-134, Affidavit of Support) or their own financial status, and c) evidence of their current nonimmigrant status (copy of Form I-94 reflecting current, unexpired, status at time of filing).
Important instructions not included on the I-539 Form. Do not apply for a change of status immediately after arrival in the U.S. Far too often I hear client stories of being denied their F-1 change of status requests because they submitted their applications too soon after arriving in the U.S., leading CIS to infer that they misrepresented their intent upon entering on their original visa.
For example, a typical visitor visa entrant is given permission to stay in the U.S. for a period of 6 months, and their Form I-94 is stamped with the date they must leave by. But, if the visitor’s intention to remain in the U.S. evolves too soon, say by submitting an application for admission to an accredited institution and obtaining a Form I-20 a couple weeks after arriving, their I-539 change of status application will be denied, no matter their financial status or intent to return to their home country.
How soon is too soon? It is advisable that applicants seeking a change of status to F-1 should not take steps until at least 90 days into their stay in the U.S. That means, only after 90 days of arriving should intending students seek admission into their program of choice, and ultimately submit their I-539 applications with the appropriate CIS office. Of course, the application should be filed before their current status expires. (warning: visitors granted less than 6 months at the port of entry will face a more complex set of legal issues in their plan to change to F-1 status, and are advised to seek counsel before taking any steps).
Another important instruction left off the I-539 application: Although you may be granted a change of status to F-1, you are in no way guaranteed reentry into the U.S. following any departure. With some exceptions, I generally will only advise clients to apply for a change of status in the U.S., if they do not care about going back to their home country for a visit in the midst of the program. That is because, the approval of a change of status to F-1 student status, only allows for a continued stay in the U.S. as a student, and is in no way a visa to reenter. In order to reenter as a student, the applicant will have to visit the U.S. Embassy in their home country and request an F-1 student visa. And the issuance of such a visa is not at all a sure thing, especially because U.S. embassy officials generally frown upon individuals who enter as visitors and change their minds and remain as students.
So for those intending students seeking the freedom to leave and reenter the U.S. in the middle of their program, it is usually advisable that a trip to a U.S. consular post outside the U.S. be made and an application for an F-1 student visa be made there, instead of seeking a change of status in the U.S. The only exception to that rule is the visitor who made it clear at the time of their B visa application and entry into the U.S. that the purpose of their entry was to visit a variety of schools and likely enroll in a program before returning home. But for this type of applicant, a desire to eventually depart and reenter the U.S. in the midst of a program will not pose any problem. Instead, the U.S. consular officer at a post outside the U.S. reviewing their F-1 student visa application will generally view the applicant as deserving of an F-1 visa since their true intention was revealed at time of initial entry into the U.S.
In conclusion, regardless of the type of guidance or advice provided by the international student adviser at the school of choice, intending students present in the U.S. in a nonimmigrant visa status other than F-1, are advised to obtain feedback from an experienced immigration attorney before submitting any F-1 change of status application.
PUBLISHED October 15, 2004 – “IMMIGRATION LAW FORUM”
Copyright © 2004-2008, By Law Offices of Richard Hanus, Chicago, Illinois