In April of 2017, USCIS released special instructions for B-1/B-2 visitors looking to enroll in school. The bulletin clarifies that unless and until a change of status application (Form I-539) has been approved, it is not permissible for a foreign national to enroll in school while in B1/B2 status. In contrast to coming to the United States directly as an F-1 or M-1 student, the process of transitioning from visitor to student while already inside can be convoluted and formidable. Being accepted into a school and receiving an I-20 is only the first step in changing one's status. The prospective student must also prudently plan and coordinate one's anticipated start date with the end date of one's initial authorized stay. If, for example, a visitor's stay is due to expire more than thirty days prior to the I-20 start date, USCIS will likely deny the change of status application. USCIS recommends that applicants in this type of situation consider filing another I-539 to extend one's visitor's status while the initial I-539 awaits adjudication; alternatively, the applicant might leave before his/her stay is up and apply for the student visa abroad.
Aside from timing considerations, there are a number of other factors and issues that an applicant needs to consider before pursuing a change of status. One of the most important and fundamental is that the applicant must already be maintaining his/her status. Once someone falls out of or violates his/her status, the person becomes ineligible (absent some exception to the rule) to change status. A visitor may unwittingly compromise his/her status any number of ways, including for example:
•· Enrolling in classes before the change of status has been approved by USCIS
•· Working in the US without authorization
•· Leaving the US for a brief trip to Mexico or Canada
•· Doing anything inconsistent with or not permitted by the terms of his/her visa (whether one has been admitted as a visitor for business or pleasure)
•· Being charged with or engaging in criminal behavior
To illustrate something that may not be so obvious: if one has applied for a visitor's visa in order to attend a conference in San Francisco, a consular officer may annotate the visa with notes to that effect, ie., "Attend 2 Day Conference in San Francisco." If USCIS later learns that the individual never even attended the conference and now wishes to attend school in Newark, NJ, to learn English as a second language, the applicant may possibly be deemed to have violated the terms of the visitor visa and determined ineligible to change status.
Most individuals admitted as visitors do not ordinarily have such detailed annotations on their passport. In some cases, such as for prospective students, the absence of an annotation may ironically diminish the chances of having one's application to change status approved. USCIS may question the original purpose of the visit and whether the applicant was being forthcoming at the consular interview if the visitor now seeks to study. Conversely, if an applicant entered the US as a "prospective student" and this is annotated on the B visa, a change of status is more likely to be approved.
Another pitfall that applicants with even the best intentions sometimes run into is the 30/60 Rule and Notion of Preconceived Intent. The rule essentially allows an officer to presume fraud or misrepresentation if a foreign national's conduct after entry is inconsistent with the purported purpose of the visa. Interestingly, the 30/60 Rule was a Department of State mechanism-technically, it is more instructive guidance to consular officers, rather than a rule-developed to facilitate the adjudication of cases abroad. USCIS, however, uses the rule quite customarily in its own everyday practice. Under 9 FAM 302.9-4(B)(3)(U)(g), officers are encouraged to apply the rule if "an applicant states on his or her application for a nonimmigrant visa, or informs an immigration officer at the port of entry, that the purpose of his or her visit is consistent with that nonimmigrant status and then violates such status by:
•· Actively seeking unauthorized employment and subsequently, becomes engaged in such employment;
•· Enrolling in a full course of academic study without the benefit of the appropriate change of status;
•· Marrying and taking up permanent residence; or
•· Undertaking any other activity for which a change of status or an adjustment of statu would be required, without the benefit of such a change or adjustment."
The second example cites enrolling in a course of study, but from practical experience, USCIS has also been known to deny change of status applications if a prospective student applies too early for the change of status, even if he/she has not yet enrolled. For example, if an individual applies to change status within 30 days of entry, USCIS may presume that the individual misrepresented his intentions during the visa process, that is, he/she entered under the pretense of being a visitor but was in truth, someone looking to study here long-term with no intention of leaving within six months.
These are only some instances of how a seemingly simple application can go awry. For more information on maintaining status, changing status, or extending status, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.