B-1 or B-2 Visa to Student Visa: Navigating New Road Blocks

For those with B-1 or B-2 status who wish to study in the United States, the process for change of status to a F or M visa can be especially challenging. According to federal regulation, those is B-1 or B-2 status may not study in the U.S. Previously, those in B-1 or B-2 status could submit a Form I-539 change of status application, in addition to a valid Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) and would typically receive approval from USCIS before the start of a new semester. However in Spring of 2017 due to increased processing times, USCIS provided new guidance that outlines additional requirements for those with B-1 or B-2 status to obtain student visas.

New Guidelines

In addition to obtaining an approved change of status application and valid Certificate of Eligibility for Nonimmigrant Student Status, individuals wishing to enroll in school in the U.S. must satisfy several other requirements. According to USCIS, beneficiaries of B-1 or B-2 status are required to have maintained lawful status at the time of filing the Form I-539 change of status application with USCIS. Additionally, one must maintain their B-1 or B-2 status while the Form I-539 is pending with USCIS and up to 30 days before the initial F-1 or M-1 program start date. Therefore, if a person’s B-1 or B-2 status expires 35 days before the first day of their academic program, USCIS will deny the Form I-539 application to change status to a F or M visa. To avoid this situation, an additional Form I-539 application to extend either B-1 or B-2 status must be filed in addition to the Form I-539 application to change status to a that of a student. USCIS also indicates that an applicant wishing to change status to an F or M visa must submit an extension for B-1 or B-2 visa if USCIS defers approval for the I-539 adjustment of status after the student’s intended start date.

Applications Filed Before April 2017

If the application to adjust status from B-1 or B-2 visa to a F or M student visa was submitted before April 6, 2017 USCIS, and the B-1 or B-2 visa expired before the 30-day cut off, USCIS may send a RFE requesting the applicant to submit a late (retroactive) Form I-539 to extend B-1 or B-2 status if:

• The delay was due to extraordinary circumstances beyond the control of the applicant and USCIS finds the delay commensurate with the circumstances;
• The applicant has not otherwise violated his or her nonimmigrant status;
• The applicant remains a bona-fide non immigrant;
• The applicant is not the subject of deportation proceedings under section 242 of the Immigration and Nationality Act (INA) or removal proceedings under section 240 of the INA.

Additionally, the applicant must obtain a certified Form I-20 that indicates the start day of the approved program.