Immigration Laws for Changing to a Nonimmigrant F or M Student Status

Contents

1. Introduction
2. Why do people seek B-1 visas and B-2 visas?
3. What are F and M visas?
4. Why people seek to change their B-1 or B-2 visa status to F status?
5. When can you change your non-immigration visa status to F or M visa status?
6. What steps are required to change from B-1/B-2 nonimmigrant status to F-1 nonimmigrant status?
7. Why you shouldn’t enroll in any classes until your F or M student status is approved?
8. What if I Have a Gap in Status?
9. How do you bridge the gap so you can claim F or M status?
10. Can you leave the US and apply for an F-1 visa from abroad?

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.

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.

US Department of State Factors For Business Visas

According to the Foreign Affairs Manual provided by the US State Department, “Visitor visas are nonimmigrant visas for persons who want to enter the United States temporarily for business (B-1), or for pleasure (B-2), or a combination of both purposes (B-1/B-2).”

Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor. The B-1 visa is not intended to be used to help foreigners obtain or engage in employment.

The line between business and skilled or unskilled labor can be a fine one. In a Board of Immigration Appeals case – In the Matter of Hira, the court essentially ruled that it was acceptable business conduct for a tailor to enter the US to measure people for suits – when the suits were being made and shipped from abroad. Here, the labor was incidental to foreign work.

Applicants can and should submit questionable cases to the Advisory Opinions Division of the Visa Office.

The Foreign Affairs Manual addresses whether B1 visas are available for:

• Aliens Traveling to the United States to Engage in Commercial Transactions, Negotiations, Consultations, Conferences, etc.

Generally, B1 visas are available to “engage in commercial transactions, which do not involve gainful employment in the United States” – including to

• • Negotiate contracts
  • Consult with business associates
  • Litigate
  • Participate in scientific, educational, professional, or business conventions, conferences, or seminars or
  • Undertake independent research
• Travel to give birth in the United States

“Any B nonimmigrant visa applicant who you have reason to believe will give birth during their stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child. The applicant can overcome this presumption if you find that the primary purpose of travel is not obtaining U.S. citizenship for the child.”

• Aliens Coming to the United States to Pursue Employment Incidental To their Professional Business Activities

“Aliens coming to the United States for the purpose of pursuing employment which does not qualify them for A, C, D, E, G, H, I, J, L, O, P, Q, R or NATO status, are not classifiable as B-1 and must be classified as immigrants. However, an alien may be eligible for B-1 business visas provided he or she meets the criteria of one of the approved categories.

• Ministers of religion and members of religious denominations meeting the approved criteria may be issued B-1 visas.
• Participants in Voluntary Service Programs

“Aliens participating in a voluntary service program benefiting U.S. local communities, who establish that they are members of, and have a commitment to, a particular recognized religious or nonprofit charitable organization. No salary or remuneration should be paid from a U.S. source, other than an allowance or other reimbursement for expenses incidental to the volunteers’ stay in the United States.” An experienced immigration lawyer will explain the voluntary service program standards and requirements.

• Members of Board of Directors of U.S. Corporation
• Professional Athletes

There are specific eligibility requirements for individual professional athletes, team members, sports, leagues, amateur hockey players, and yacht crewmen.

• Coasting Officers
• Investors Seeking Investment in the United States
• Equestrian Sports

Call Herman Legal Group at +1-216-696-6170 or complete our contact form to learn more about B-1 and B-2 extensions and change requests.

US Department of State Factors For B1 and B2 Visas including Temporary Visas for a Fiancé

According to the Foreign Affairs Manual provided by the US State Department, “Visitor visas are nonimmigrant visas for persons who want to enter the United States temporarily for business (B-1), or for pleasure (B-2), or a combination of both purposes (B-1/B-2).”

The factors that are considered in determining whether someone qualifies for temporary visitor classification are whether the applicant:

• Has a residence in a foreign country, which “they do not intend to abandon.”
• Intends to enter America for a specifically limited time period
• Seeks admission “for the sole purpose of engaging in legitimate activities relating to business or pleasure.

Applicants who fail to meet one or more of the above criteria must be refused a B1 or B2 visa (or combination visa) based on section 214(b) of the Immigration and Nationality Act (INA).

Special circumstances – Fiancés

These directives are for the USCIS officer. Experienced immigration lawyers can also explain what these directives mean.

“An alien proceeding to the United States to marry a U.S. citizen petitioner within 90 days of admission is classifiable as a K-1 nonimmigrant under INA 101(a)(15)(K). (See 22 CFR 41.81.) The fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) may, however, be classified as a B-2 visitor if you are satisfied that the fiancé(e) intends to return to a residence abroad soon after the marriage.

A B-2 visa may also be issued to an alien coming to the United States:

• Simply to meet the family of his or her fiancé
• To become engaged
• To make arrangements for the wedding
• To renew a relationship with the prospective spouse.

“Fiancé(e)s who establish a residence abroad to which they intend to return, and who are otherwise qualified to receive visas, are eligible for B-2 visas if the purpose of the visit is to marry a nonimmigrant alien in the United States in a valid nonimmigrant F, H, J, L M, O, P, or Q status.”

“You should advise the fiancé(e) to apply for a change in nonimmigrant status to that of the derivative of the alien spouse soon after the marriage to the nearest office of Department of Homeland Security (DHS). B status is not appropriate if the fiancé(e) intends to remain permanently in the United States after admission, even if he or she would seek to do so by filing an adjustment or change of status application.

“A spouse married by proxy to an alien in the United States in a nonimmigrant status may be issued a B-2 visitor visa in order to join the spouse already in the United States. Upon arrival in the United States, the joining spouse must apply to the DHS for permission to change to the appropriate derivative nonimmigrant status after consummation of the marriage.”

There are additional guidelines for the spouse or child of a foreign applicant. These guidelines apply to adopted alien children too.

B2 status may also be available for:

• “Cohabitating partners, extended family members, and other household members not eligible for derivative status.”
• “Adoptive Child Coming to the United States for Acquisition of Citizenship”
• “Aliens Destined to an Avocational or Recreational School”
• Many other categories

Call Herman Legal Group at +1-216-696-6170 or complete our contact form to learn more about B-1 and B-2 extensions and change requests.

FAQs About Extending a B1 or B2 Visa

What are the requirements for extending my stay?

According to Path2usa, B1 and B2 visa holders can extend their stay if:

• You have a valid legitimate reason to request for visa extension, under the visa category.
• You were lawfully admitted into the United States with a non-immigrant visa
• Your non-immigrant US visa status remained valid
• You have not committed any crimes that make you ineligible for a visa
• You have not violated the conditions of your admission to the USA
• Your passport is valid and will remain valid for the duration of your stay.
• You have definite plans to leave the US at the end of the proposed visa extension period.
• Proper evidence for financial support is provided.

What Documents Do You Need to Complete for a US Visa Extension?

You’ll need to:

• Fill out and complete form I-539. You can do this online, by the mail, or in person at a USCIS office
• If you file online, you’ll need to understand how to submit attachments of the document you’ll need
• File an application (letter) stating the reasons for requesting a visa extension
• Provide proof you can support yourself financially during the extension – such as bank account statements and employer statements
• Supply a copy of your return airline or shipping tickets
• Pay the filing fees ($370) and any biometric fee ($85). Generally, your spouse and children are included in these fees
• Provide a copy (not the original) of your I-94 for each applicant

Be sure to read the extension checklist and to follow the sample cover letter that the USCIS provides.

When Should the Visa Extension Request be field?

The USCIC recommends that you request an extension at least 45 days before your visa expiration date ends. Generally, USCIS must receive your completed application and fees by the day your authorized stay ends.

What Happens After you File the Extension Request?

The USCIS will send you a receipt with a 13 digit case number. “The approximate processing time will be indicated on the receipt.” You may be given a biometrics appointment so you and anyone else on the application can be fingerprinted and photographed

If you file your extension request on time, you may be permitted to stay in the US for up to an additional 240 days depending on the reasons behind your request and other factors.

You can check the status of your request online through the receipt case number.

If the visa extension is approved, you will be given a replacement I-94 with the new expiration/departure date. You should make copies of this I-94 so you’ll have them for subsequent trips to the United States.

If the visa extension request is denied, you’ll receive written notice of the denial. You will need to leave the US immediately.

Any additional tips?

Be sure your travel medical insurance is current and covers the extended stay.

Generally, you should be prepared to leave so you’re ready if the visa extension is denied. If the extension request is granted, you can follow through with your alternate plans.

I have a B1-B2 visa and I want to extend my stay, Should I apply for a Visa extension OR just go to Canada Or Mexico and re-enter, will I get a new I-94 within 6 months?

“B1 and B2 visas are usually issued for a term of 10 years. Each visit may last up to six months, although some categories of visitors may apply to extend their visit for an additional 6 months. During your visit to the U.S., you may visit Canada, Mexico, or the Caribbean islands (not Cuba)for up to 30 days and re-enter the U.S. as long as you re-enter within the period noted on Form I – 94 which you received when you first entered.”

How Long you can Stay after Applying for a Visa Extension?

“If USICS receive your application before your status expires (or, in exceptional cases, we excuse filing after your status expires due to circumstances beyond your control), and if you have not violated the terms of your status and meet the basic eligibility requirements, then you may continue your previously approved activities in the U.S.( including previously authorized work, for a period of up to 240 days), until we make a decision on your application or until the reason for your requested extension has been accomplished- whichever comes first.”

What if I file on time for a Visa Extension, but I leave America before USCIS makes a decision on my application?

“If you leave the US before a decision is made on your application to extend and you plan to return to the U.S. in the future, please keep a copy of your application plus the receipt notice to show to the Immigration Inspector on your return travel to the U.S. Otherwise, you may be denied entry for overstaying on your last visit.”

Call Herman Legal Group at +1-216-696-617 or complete our contact form for answers to all your B-1 and B-2 extension requests and change of status requests.