By the time his term of office ends on January 20, 2021, Donald Trump will have reduced immigration to the United States by more than half. He has managed to accomplish all of this through executive order and regulatory changes, without any change in statutory law — and therefore no need for cooperation from Congress.
The timing of this decrease in immigration makes it obvious that nowhere near all of it can be attributed to the COVID-19 crisis.
The administration has erected so many walls against immigration, both literally and figuratively, that it would be impossible to list them all succinctly. All told, Trump issued more than 400 executive orders and actions, each of them with significant impact. Some of the highlights (or, perhaps better put, lowlights) are listed below.
Border Control Measures
The Trump legacy begins at the US border. Some of the administration’s more objectionable policies include:
- Implementing a “Muslim travel ban” under which nationals of Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela were banned from entering the US on the basis of nationality alone;
- Closing the land border with Mexico, ostensibly for the purpose of preventing the spread of COVID-19;
- Placing detained undocumented immigrants in cages; and
- Separating parents from their children at the border (since rescinded after a public outcry).
Asylum
Asylum claims have been rapidly increasing since before Trump took office. The Trump legacy, however, includes:
- Rendering migrants ineligible for asylum at the border — they must apply for asylum en route to the US;
- Implementing the “remain in Mexico” policy that required asylum applicants to wait in Mexico while their asylum claims were being adjudicated (resulting in tent cities popping up on the Mexican side of the Rio Grande river);
- Entering into agreements with Central American countries (from which most recent asylum seekers originate) erecting barriers to asylum claims. and
- Ending Temporary Protected Status for nationals of Haiti, Nicaragua, and Sudan;
All told, these measures eliminate asylum as an option for most of those who seek it.
Refugee Admissions
The Trump years have also been dismal for refugees:
- Refugee admissions dropped to a little over 20,000 in 2018, slightly less than a quarter of the number admitted in 2016, and the lowest since the modern refugee program began in 1980.
- Trump also lowered the refugee admission ceiling to 18,000.
- Refugee admissions in the first half of 2020 plummeted to 7,754.
Interior Enforcement
Trump’s immigration initiatives did not stop at the border. Despite the Obama administration’s prioritizing of the apprehension of undocumented aliens with criminal records, Trump issued an executive order targeting all undocumented undocumented immigrants, even those not suspected of criminal activity. As a consequence, 36 percent of the undocumented immigrants arrested had no prior criminal record, compared to 14 percent in 2016.
Other actions taken by the Trump administration include:
- Assigning hundreds of Border Patrol and ICE agents to ten “sanctuary cities” to apprehend undocumented immigrants;
- Conducting 24/7 surveillance operations around the homes and workplaces of undocumented immigrants (since rescinded due to the COVID-19 pandemic);.
- Packing the nation’s immigration courts with anti-immigration judges, who have acted so aggressively that a backlog of more than 1 million cases has built up in the immigration court system;
- Increasing the number of deportation orders by nearly 50 percent; and
- Allowing private, profit-seeking companies to manage immigration detention centers, resulting in widespread reports of human rights violations.
DACA (Deferred Action on Childhood Arrivals)
The Obama administration offered forbearance to undocumented immigrants who arrived in the US as children. The Trump administration has offered them little more than hostility by canceling DACA protections, thereby putting immigrants who arrived in the US as children in danger of deportation.
This hostility has affected up to 500,000 undocumented immigrants. Even after the courts thwarted this policy, the Trump administration instituted a policy of denying all first-time applications and granting renewals for only one year at a time.
Modified “Public Charge” Rule
The Trump administration has strengthened the “public charge rule”, making it much easier to deny immigration benefits, including permanent residence, to an applicant based on poverty or use of public benefits. The new rules are so onerous that the Migration Policy Institute (MPI) estimates that nearly 70 percent of green card applicants are now at risk of denial on public charge grounds alone.
In addition to the foregoing innovation, the Trump administration has also ramped up enforcement of financial support commitments made by US sponsors of immigrants.
International Students
The Trump administration has initiated several unprecedented policies that make it more difficult for international students to study in the United States, including:
- Refusing to allow international students attending schools that hold classes entirely online (due to COVID-19 concerns) to be issued a nonimmigrant visa, to even enter the US to study, or to remain in the US for the “duration of study” period of the F-1 student visa.
- Placing barriers that make it difficult for international students to work in the US after graduation (articularly in H1B status), thereby deterring them from coming to the US in the first place; and
- Turning down a large proportion of F-1 (student) visas, especially for students from China.
Nonimmigrant Visas
The USCIS and the Department of Labor have increased their scrutiny of nonimmigrant applications for employment-based visas, including both the H-1B and the L-1, among others. Denials of H-1B nonimmigrant visa applications, for example, have more than doubled.
The Trump administration has also narrowed the scope of eligibility for the visa. Entry-level computer programmers, for example, normally do not qualify for H-1B status any longer.
Other hostile measures include:
- Eliminating deference to prior approvals, so that H-1B applicants don’t face an easier approval process the second time around; and
- Suspension of Premium Processing services, thereby increasing average wait times.
Employment-Based Immigrant Visas
The Trump administration’s hostility towards employment-based immigrant visa applicants (many of whom are highly qualified) is reflected in recent policy adjustments:
- Interviews are now mandatory, regardless of whether the applicant is seeking a visa abroad or is seeking to adjust status within the United States;
- The minimum investment amount for EB-5 applications (green card through capital investment) has been increased from $1 million to $1.8 million for investments in most of the US, and from $500,000 to $900,000 for investments in “targeted employment areas.:
It is worth repeating that the above-described hostile immigration policies are just the tip of the iceberg, and that all of this was accomplished without Congressional approval. The new Biden administration can reverse some of the policies with the stroke of a pen — but others will take considerably longer to implement.
Some immigrants can change their nonimmigrant status to F-1 status, if approved by the USCIS. Others can’t. Generally, according to the USCIS, you can apply for a change in nonimmigrant status from one visa classification to another if:
- You were lawfully admitted to the US.
- Your current status is still valid
- You haven’t violated any of the conditions of your status
- You haven’t committed any crimes that would make you ineligible
There is no requirement to change “your nonimmigrant status if you wish to attend school in the United States, and you are the spouse or child of someone who is lawfully admitted to the United States in any of the following nonimmigrant visa categories;”
- Diplomatic and other government officials, and employees (A visa category)
- International trade and investors (E visa)
- Representatives to international organizations and their employees (G visa)
- Temporary workers (H visa)
- Representatives of foreign media (I visa)
- Exchange visitors (J visa)
- Intracompany transferees (L visa)
- Academic (F visa) or vocational (M visa) students (you may attend elementary, middle, or high school only). However, if you want to attend post-secondary school full-time you must apply for a change of status.
Individuals in F-2 status are eligible for part-time study
Anyone who was admitted into the US through one of the following nonimmigrant visas or programs cannot apply to change their nonimmigrant status:
- Visa Waiver Program
- Crew member (D nonimmigrant visa)
- In transit through the United States (C nonimmigrant visa)
- In transit through the United States without a visa (TWOV)
- Fiancé of a U.S. citizen or dependent of a fiancé (K nonimmigrant visa)
- Informant (and accompanying family) on terrorism or organized crime (S nonimmigrant visa)
If you have a vocational student (M-1), you may not apply to change your status to a(n):
- Academic student (F-1)
- “Any H status (Temporary worker), if the training you received as a vocational student in the United States provided the qualifications for the temporary worker position you seek.”
If you are an international exchange visitor (J-1), you may not change your nonimmigrant status if:
- You were admitted to the United States to receive graduate medical training unless you receive a special waiver.
- You are an exchange visitor and are required to meet the foreign residence requirement unless you receive a waiver.”
“If you do not receive a waiver, you may only apply to change to a diplomatic and other government official (A visa) or representatives to international organizations (G visa)”
If your status is of a type that allows full-time studies in America, you may start classes before your change of status application is approved. Your rights to any type of employment, such as an assistantship, may be denied, however, until after your F-1 status is approved.
The ability to transfer your status is generally governed by federal statute – 8 C.F.R. § 214.2(b)(7). This statute provides, specifically, that if you a B-1 or B-2 status, you are prohibited from entering into a course of study in the United States. You must seek to change your status to F-1 status (academic status) or M-1 (vocational student status).
You can start a school program if you have E status – provided the schooling doesn’t interfere with your E status. E status is a nonimmigrant visa status for treaty traders and investors.
If you start a school program while you have B-1 or B-2 status, you will be considered to be in violation of your nonimmigrant status which means:
- Your rights to stay in America may not be extended
- You will lose your right to request a change in status to F-1 or M-1 status.
If you seek a change of status to F-1 from within the US, you will not receive an F-1 travel visa, only F-1 status. If you leave America, you will need to apply for an F-1 visa at a U.S. consulate in order to be able to return to the U.S.
Call Herman Legal Group at +1-216-696-6170 or fill out our contact form to talk with us about helping you determine your eligibility to change your status to F-1 or M-1 status.
Contents
- Introduction
- Why do people seek B-1 visas and B-2 visas?
- What are F and M visas?
- Why people seek to change their B-1 or B-2 visa status to F status?
- When can you change your non-immigration visa status to F or M visa status?
- What steps are required to change from B-1/B-2 nonimmigrant status to F-1 nonimmigrant status?
- Why you shouldn’t enroll in any classes until your F or M student status is approved?
- What if I Have a Gap in Status?
- How do you bridge the gap so you can claim F or M status?
- 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.