Herman Legal Group

Introduction

Many B-1 and B-2 nonimmigrant visa holders may wish to change their status to F-1 student status. Holders of other nonimmigrant visas, such as J-2 exchange visitors, H-1B nonimmigrant visa holders (and spouses – H4 visas) may also want to switch. The desire to change has become more prevalent due to the COVID-19 healthcare crisis.

a guy holding passport to travel through to another country

Why do people seek B-1 visas and B-2 visas?

B-1 visas are temporary business visitor visas which, according to the USCIS, give the B-1 visa holder the right to participate in “business activities of a commercial or professional nature in the United States, including.” Examples of why people seek a B-1 visa are:

To consult with business associations
To attend an educational, business, or scientific conference or convention
To negotiate a contract
To settle an estate
For short-term training
To travel through America to another country
Other approved reasons

B-2 visas are used by foreigners who just want to travel. They can also be used for medical treatments and for some education reasons, according to Visa Guide World. Examples of why people seek a B-2 visa include:

An American vacation
Spending time with friends and families
Participation in social activities or organizational activities
Amateur sport participation
Musical activities
Non-credit courses of study

There is no current cap on the number of B-2 visas that can be issued.

As hard as it can be to obtain US approval to enter the United States, there are challenges in returning to foreign countries during the pandemic. Some countries have denied reentry from America. Many B-1 and B-2 visa holders are concerned that long flights or long navigations may expose them to the disease.

What are F and M visas?

There are three types of F visas:

F-1 is for non-immigrants who want to study full-time in the United States. These visas can be obtained
- From abroad – from US embassies or consulates
- Within the US – through a change in the status request

F-1 students may apply at the schools of study through Form I-20 – to obtain an F-1 visa

F-2 visas are for the dependents of F-1 nonimmigrant visa holders.
F-3 visas are for Canadians and Mexicans who wish to study in the US

Why people seek to change their B-1 or B-2 visa status to F status?

According to the USCIS, people who hold a B-1 or B-2 visa cannot enroll in school unless they first acquire F-1 status. F-1 status is for academic students. M-2 status is for vocational students. Holders of other visas may be able to enroll in course of a study, depending on the type of visa. For example, holders of E status visas can enroll in school – provided the enrollment doesn’t interfere with the ability to keep their E status.

If you hold a visa that does not permit you to enroll in a class and you enroll in class anyway – your visa status will be in jeopardy. These visas holders will not be able to extend their status. Nor will they be able to change their status to F-1 or F-2 status.

When can you change your non-immigration visa status to F or M visa status?

The United States Citizenship and Immigration Services (USCIS) agency has specific requirements for changing your nonimmigrant status.:

You must be lawfully admitted in the US in a nonimmigrant status
Your nonimmigrant status must be valid
You can’t have any violations on your status condition
You can’t have “committed any crimes or engaged in any other actions that would make you ineligible for change of status.”

What steps are required to change from B-1/B-2 nonimmigrant status to F-1 nonimmigrant status?

You should review your change request with experienced immigration and non-immigration lawyer who:

Understands the eligibility requirements
Understands what forms, documents, and fees are required
Will help you prepare the forms and document – and sign them properly
Will explain where to mail the application
Can check on your approval status

If you are seeking a change in status to F or M visa status, don’t assume the request has been approved. Approval requires the following steps:

“Apply to and receive acceptance from a U.S. Student and Exchange Visitor Program (SEVP)-certified school.
Obtain an initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, from the SEVP-certified school. The Designated School Official (DSO) should give “change of status” in the Issue Reason section of the Form I-20. According to the Student Life International Center at the University of Michigan, you should send a coy and keep the original.
Pay the I-901 SEVIS Fee. Include a receipt of the payment.
File a Form I-539, Application to Extend/Change Nonimmigrant Status, with USCIS. Pay the application fee and include a receipt of payment.

According to the Student Life International Center at the University of Michigan, you also need to include in your application:

“A cover letter (one page) requesting the change of status from your current status to F-1. This letter should include a brief explanation as to why you wish to change to F-1 status. You should also provide a checklist of the documentation you are including in your application.”
“Evidence of financial support (i.e., bank statement, assistantship letter, etc.). If you have been offered an assistantship from the department and therefore will need to start your on-campus job under F-1 employment authorization, you may want to request USCIS to expedite your change of status application. There is no guarantee that your application will be expedited, but there is no harm in asking. Please note that after your change of status to F-1 is approved, the earliest date you may start working on campus is 30 days before the first day of classes of your first term as an F-1 student.”
Copies of:
- The letter of admission from the University
- All of the immigration documents (e.g. DS-2019, F-2 I-20, I-797, paper or print-out of electronic Form I-94, valid passport, visa stamp, EAD card, etc.) showing that you are currently in lawful non-immigrant status
- The waiver of the 212(e) Two-Year Foreign Residency Requirement (if you were previously in J status and subject to the requirement), if applicable.

Make a full copy of your entire application and supporting documents.

Why you shouldn’t enroll in any classes until your F or M student status is approved?

Don’t enroll in a course of study until your authorization is clear based on your current visa status or your approval of F or M student status.

“If USCIS has not adjudicated your change of status at least 15 days before the program start date on your Form I-20, contact the DSO at your new school.
If USCIS does not grant your request to change status prior to the start date of classes, you will need to defer attendance and wait until the following term in order to begin your studies at the school in F or M status.”

You must keep a valid nonimmigrant status – while your Form I-539 request is pending. Enrollment in class or course of study can make your current nonimmigrant status (such as B-1 or B-2) invalid.

The timing for making the switch and enrolling in a class is very complex. Work with an experienced immigration lawyer who can guide you through the change in the status process, the timelines, and answer all your questions.

If you are an M-1 student, you can’t change to an F status while you are in the United States.”

What if I Have a Gap in Status?

Applicants for an F or M student status from a B-1 or B-2 status often have difficulty obtaining the approval to switch because of a unique requirement. The USCIS can approve the switch – up to 30 days before the course of study begins. This 30-day rule is based on 8 CFR § 214.2(f)(5)(i), which provides that “[a]n 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.”

If, according to the USCIS, “your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date – you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”).

How do you bridge the gap so you can claim F or M status?

Bridging the gap involves filing a Form I-539 so you can request an extension of your current nonimmigrant visa (such as the B-1 or B-2 visas) in addition to the other Form I-539 application to change to student status. If you don’t file the extension request, your Form I-539 request to change to F-1 or M-1 status will be denied.

The bridge requests are complicated because it can take a while for the extension to be approved. You may need to file multiple extension requests.

According to the Maryland State Bar Association, due to the lengthy processing times for the separate Form I-539 requests, “your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date.” This means you’ll need to obtain extensions – “up to the date which is 30 days before your new program start date.” You’ll need to pay separate filing fees for each Form I-539 request.

There’s a major complication though in seeking the extension of your B-1/B-2 visas so you can seek the change in status. One you seek to change your status to F-1 (through Form I-539) – if the application isn’t approved within 60 days from the requested start date in SEVIS – it will be canceled unless – the Designated School Official (DSO) manually defers the date of admission to either:

A later date in the same term provided the student can start the course/school at the same time
The start of the next term – if the foreigner’s nonimmigrant status doesn’t allow for school attendance until the B-1/B-2 to F-1 status request is approved.

According to the Maryland State Bar Association, “on April 5, 2017, USCIS issued a new policy requiring that the applicants in B-2 status extend their status to cover any “gap” between the expiration of their previous B-2 status and the program start date.” “On February 6, 2018, USCIS revised its instructions to include applications filed by applicants in all other initial nonimmigrant statuses.”

USCIS applicants need to find a way to bridge the gap from the end of their current visa status up to 30 days before the “deferred” program start date.

Generally, B-2 applicants can file for an extension of their status through a second I-539 Form request. The extension request can only be for up to six months. Given that the F-1 request may take up to a year or more, several B-2 extension requests may need to be made – in order to fully bridge the gap. Essentially, USCIS is now making it as difficult as possible to request a change of nonimmigrant status to F-1.

Can you leave the US and apply for an F-1 visa from abroad?

Yes. According to the USCIS:

You can leave the US and then apply for an F-1 nonimmigrant visa through a US embassy or consulate. You’ll need to:

“Apply to and receive acceptance from a SEVP-certified school.
Receive a new initial Form I-20 from your designated school official (DSO).
Pay the I-901 SEVIS fee.
Apply at a U.S. consulate or embassy for an F-1 or M-1 visa to travel to the United States in order to seek admission as a student.
If you are from a country where no visa is required, such as Canada, you may proceed directly to a U.S. port of entry or a U.S. pre-clearance/pre-flight inspection station and apply for admission to the United States as an F-1 or M-1 student.
Once admitted by an immigration officer in F-1 or M-1 status, you may begin your studies.”

Call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us about helping you prepare and file your I-20 and I-539 change to F-1 nonimmigrant visa status.

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