Change of Status from B Visitor to F1/M1 Student

 

Introduction: Change of Status from B Visitor to F1 or M1 Student

Change of Status form BUnder section 248 of the Immigration and Nationality Act (INA) and regulations in 8 C.F.R. 248.1, it is permissible under certain circumstances to change from B1 or B2 nonimmigrant visitor status to F1 or M1 student status. However, the nonimmigrant visitor who is seeking change of status must be maintaining his or her visitor status and be otherwise eligible for change of status and must satisfy the United States Citizenship and Immigration Services (USCIS) that he or she did not obtain a B1 or B2 visitor visa in order to circumvent the normal application process for an F1 or M1 student visa. In this article, we will examine the rules and procedures for seeking a change of status from B1 or B2 visitor to F1 or M1 student. Please note that an alien who enters under the Visa Waiver Program or as a nonimmigrant visitor otherwise without a visa will not be eligible to change status.

To learn about the rules for change of status in general, including those that are applicable to eligibility to change from B1 or B2 to F1 or M1, please see our full article [see change of status]. Please also see our article on a recent USCIS FAQ on change of status from B visitor to F1/M1 student [see article].

Change from B1 or B2 Visitor Status to F1 or M1 Student Status

There are numerous issues that arise with regard to change from B1 or B2 visitor status to F1 or M1 student status. Under 8 C.F.R. 248.1(c), a change of status application to F1 or M1 student need not be denied as a matter of course if the applicant began attending the school before applying for a change of status. However, notwithstanding 8 C.F.R. 248.1(c), USCIS will, under 8 C.F.R. 248.1(c)(3), deny a change of status application from B to F1 or M1 if the applicant began his or her course of study before the change of status was approved.1 Accordingly, a B1 or B2 visitor must refrain from attending the school before applying for change of status and during the pendency of the application.

The change of status application is filed on the Form I-539. The B1 or B2 visitor must not have engaged in unauthorized employment prior to the change of status application.

Obtaining a B2 Visa as a Prospective Student

It is possible to obtain a B2 visa with the intent of changing to F1 or M1 student status. In order to do so, the prospective student must state this as his or her intention at the consulate and present evidence that he or she will be eligible for student status. If the B2 visa is approved, it will be marked “prospective student” at the consulate [see 67 FR 18065]. If an alien is seeking a B2 visa with the intention of attending school, it is important for the alien to properly represent his or her intentions when seeking the visa at the consulate. As we will discuss in the next section, an alien who is found to misrepresent his or her intentions will be found to be ineligible for the change of status and potentially face adverse immigration consequences.

No Change of Status if Purpose for Entry was Misrepresented

All other B1 and B2 visitors may apply for a change of nonimmigrant status to F1/M1 student by filing the Form I-539, Application to Extend/Change Status. However, B visitors should be aware of the 30/60 day rule [see comprehensive article]. The 30/60 day rule is an adjudicative principle used by the Department of State, and often referenced by the USCIS [see article on USCIS and the rule] which addresses when an alien “conduct[s] [him or herself] in a manner inconsistent with representations they made to the consular officers concerning their intentions at the time of visa application or to immigration officers when applying for admission.” Although the 30/60 day rule is not binding on USCIS, the USCIS will generally deny a change of status application sought within 30/60 days of entry as a B visitor (except in the case of a B2 “prospective student”). If the B visitor obtained a school certificate prior to entry, this will be considered evidence of “preconceived student intent.”

In the precedent administrative decision in the Matter of Hsu, 14 I&N Dec. 344 (RC 1973) [PDF version], an application for change from B1 status to F1 status was denied because it was determined that the applicant had obtained his B1 visa under the pretext of conducting business when the purpose of the visit was actually to “[evade] the normal visa-issuing procedures for obtaining a student visa.”

The United States District Court for the District of Columbia decision in Tsui v. Attorney General of the U.S., 445 F.Supp. 832 (D.D.C. 1978) [PDF version] upheld the denial of a change of status from B2 visitor to F1 student where the evidence in the record indicated that the B2 visitors entered under the pretext of tourism but in actuality were intending students. In Tsui v. Att'y Gen, the B2 visitors obtained certificates of eligibility from the school within 45 days of entry and sought change of status within 4 months of entry.

Change of Status Must Occur Prior to 30 Days After Visitor Visa Expiration Date

8 C.F.R. 214.2(f)(5)(i) states that an F1 student “may be admitted for a period of up to 30 days before the indicated report date or program start date listed on the Form I-20.” USCIS interprets this in conjunction with 8 C.F.R. 248.1 to mean that an alien may not change status from B2 to F1 if his or her B2 status does not expire for more than 30 days before F1 status would begin. For this reason, a B vistor whose status is scheduled to expire prior to 30 days before his or her intended program start date must file a separate Form I-539 extension of status application along with a separate filing fee in order to maintain B status until the change to student status could be completed. Please see our full article on the subject to learn more [see article].

In 2011, the United States District Court for the District of Maryland called the USCIS's position that the change of status application could not be approved after the expiration of B visitor status in Youssefi, v. Renaud, 794 F.Supp.2d 585 (D. Md. 2011) [PDF version]. However, no Federal circuit courts have adopted this view in a published decision.

Financial Support Requirement

It is important to remember that an applicant for an F1 or M1 student visa is required to demonstrate that he or she will have the necessary financial support to study in the United States. In the precedent decision in the Matter of Haddad, 10 I&N Dec. 785 (RC 1964) [PDF version], a change of status from B visitor to F1 student was denied, in part because the applicant failed to demonstrate that he would have the requisite financial support to engage in a full course of study. A B1 or B2 visitor seeking a change to F1 or M1 status should be aware that additional evidence will likely be needed to demonstrate having the requisite financial resources to be eligible for a student visa.

Conclusion: Change of Status from B Visitor to F1 or M1 Student

If an alien intends to use a B2 visitor visa to visit schools and subsequently apply for a change of status in the United States, he or she must explain this when applying for a visa at the consulate. USCIS will deny a change of status application if it finds that the applicant misrepresented his or her intentions in obtaining the previously accorded status. If a B visitor intends to change status outside of the 60 day window where the change will likely be denied, he or she should consult with an experienced immigration attorney. An experienced immigration attorney will be able to assess the situation and determine whether the B visitor may be able to obtain a change to F1 or M1 status in the United States or whether he or she will have to seek a student visa at a U.S. consulate abroad.

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  1. See also: Memo, Williams, Ex. Assoc. Comm. Field Operations, HQISD 70/6.2.2 P (Apr. 12, 2002)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 856-58, Print. Treatises & Primers.