Changing to and from F-1 Status

B1/B2 status to F1 Student Visa to USA

 

Introduction to Changing Status to and From F-1 Status

A prospective student is visiting the United States on a B-2 visa with the intent to look at schools in anticipation of applying for F-1 will be eligible to change their status from B-2 visitor to F-1 student provided they have a B-2 visa marked as “prospective student.”

Since the duration of status for an F-1 visa is limited to the amount of time it will take an F-1 student to finish his or her studies, the student is normally required to leave the country upon its completion. If the student overstays or violates the terms of the F-1 visa during his or her stay, he or she will likely have difficulty avoiding removal from the United States and might be found inadmissible depending on the violation. However, provided that the student follows the proper procedures, it may be possible for him or her to obtain an extension of stay, a work visa, or even a change to permanent resident status.

Rules for Changing from B-2 visitor for pleasure status to F-1 student status

It is possible for a prospective student to visit American schools under a B-2 visitor visa and then change their status to F-1 provided that the prospective student follow a series of steps.1 The prospective student must get his or her B-2 visa marked as “prospective student” at his or her consular office in order to later change to F-1 student status.2 3 Prospective students may be required to demonstrate to their consular officer that they will be able to meet the requirements for F-1 status.4 Holders of B-2 visas marked as “prospective student” must remember that they are ineligible to take classes until their status is adjusted to F-1.5

Rules for Changing from F-1 Student Status to H-1B Status

After successfully completing their studies under F-1 student status, students may be qualified for a work-related H-1B visa, which many use as a step toward permanent resident status.6 First, students must prove that they are qualified to work in a specialty occupation, and their prospective employer must file a Labor Condition application with the Department of Labor and petition CIS for the student to get a change of status from F-1 to H-1B.7 However, there is a cap on the number of H-1B visas for any given year. If the cap on H-1B visas was reached for that year, an otherwise eligible student is may have his or her student status extended until more H-1B visas are available. However, the F-1 student will be ineligible to work until the H-1B visa is obtained.8 9

Changing from F-1 Student Status to Permanent Resident Status

Most F-1 students cannot easily adjust directly from F-1 status to permanent resident status. One way is through an employer, but this route is difficult without first having H-1B status, as the prospective employer would have to show that the student is both qualified for the preference category he or she is applying under and that there are no U.S. citizens or residents available for the same job.10 11

F-1 students with a spouse, parent, or adult child with U.S. citizenship may be eligible for change to permanent resident status as an immediate relative.12 Since students cannot marry for status benefits, such a student will initially have conditional status for two years instead of a permanent status.13 Other familial relations may make a student eligible for adjustment to permanent status. However, they have annual caps and waiting periods and are harder to obtain than permanent resident status as an immediate relative.14 15

Rules for Changing Status after Overstaying F-1 Student Visa

Overstaying a student visa is usually grounds for removal and inadmissibility to the United States. However, it may be possible for someone who has overstayed an F-1 student visa to obtain adjustment back to F-1 status if he or she:

Makes a request for reinstatement that includes the school he or she attends or is planning to attend and prove able to uphold reinstated F-1 status16
Did not overstay for more than five months17
Circumstances that led to overstay were beyond his or her control or that not being reinstated would cause extreme hardship18
Must not have any other grounds for removal besides overstaying F-1 visa 19 20

People seeking adjustment back to F-1 student status after overstaying a visa must refrain from employment or any other activity that would render them removable.

Consequences for Violating F-1 Status

If a student who violates the terms of F-1 status and failed to obtain an adjustment back to F-1 student status cannot have the F-1 status reinstated. He or she would have to leave the United States and apply for a new visa from his or her home country.21 22 Students who were in the United States without status between 180 days and one year are ineligible to reenter for three years, while students who were in the United States for over one year are barred from reentry for ten years.23

Students who did not maintain legal status for the duration of their stay in the United States are ineligible to have their status adjusted to permanent resident status unless they have an immediate relative 24 who is a citizen, or is a special immigrant as described in INA § 101(a)(27)(H), (I) or (J)25, or that they can show the failure to maintain continuous legal status was no fault of their own.26

Students found to have willfully misrepresented information to obtain F-1 status or an adjustment of status are ineligible to be admitted to the United States. Because of this, it is important for F-1 students to be honest in the information they provide since the penalty for misrepresenting information is more severe than the penalties for other violations of F-1 status.

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  1. 243 — Numbers refer to page numbers in Weissbrodt, David, and Laura Danielson. Immigration Law and Procedure in a Nutshell. 6th ed. N.p.: West, 2011. Print. West Nutshell Ser.
  2. Id.
  3. 67 Fed.Reg. 18065
  4. 243
  5. Id
  6. 243
  7. 243-44
  8. 244
  9. INA § 275(c)
  10. 244-45
  11. § 5-3.1(b), supra.
  12. 244
  13. Id.
  14. Id
  15. § 5-3(a)
  16. 245-46
  17. 246
  18. Id.
  19. 8 C.F.R. § 214.2(f)(16)
  20. 246
  21. Id.
  22. INA § 222(g)(2)(A)
  23. 246-47
  24. INA § 201(b)
  25. Id.
  26. 247