UPDATE: Student Visa Change of Status (F-1/ M-1)

Early last month, USCIS updated guidelines for nonimmigrants wishing to change status to F-1/M-1. For nonimmigrants in valid, non-student status, the lengthy approval process for both F-1 and M-1 presents a number of issues. One such issue occurs when a nonimmigrant undergoing the change of status process to F-1/M-1 experiences a lapse of their current non-student status. Previously, this issue primarily impacted those in B-1 or B-2 status, who had to adhere to strict guidelines to maintain status. However as of February 6th, changing to student status (F-1 or M-1) from any immigration status, just became a lot more difficult.

Change of Status

Typically, subject to certain exceptions, federal regulations prohibit studying in the U.S. under a non-student status. Therefore, to legally study in the U.S., nonimmigrants must obtain either F-1 or M-1 status. Those who are eligible to apply for a change of status to a F-1 or M-1 must have entered the U.S. legally, maintained valid immigrant status, and not have committed a crime or action to invalidate their current status. To apply for student status, individuals must be accepted into an approved institution, obtain a Form I-20 from the approved institution, pay necessary fees, and submit a Form I-539 application to change nonimmigrant status. However, completing these steps will not guarantee a valid student status. Until USCIS approves an application for student status, a foreign national may not enroll in a higher education institution regardless of their acceptance. Due to a series of backlogs, the approval process may take several months, jeopardizing those with who may experience a lapse in status during the change of status application process.

Gap in Status

To be eligible to study in the U.S., the revised USCIS policy requires that all nonimmigrants changing to a student status maintain their valid nonimmigrant status from the date the Form I-539 was filed until at least 30 days before the start date of their educational program. In the past, this policy only applied to B-1 or B-2 visa holders. This change in policy could have a significant effect on current foreign nationals with intent to study in the U.S. due to extremely long processing times for student visas. For example, an H-4 beneficiary currently attending the school in H-4 status but who will soon turn 21 and be eligible to stay in H-4 status wishes to continue attending school in F-1 status.  He applied for a change of status to F-1, and his H-4 will remain valid within 30 days of the start of the program. However, because processing times for F-1 can be up to 10 months, the individual would have to file a separate Form I-539 to change into a different status like B-1/B-2 to “bridge the gap” of his status. This change in USCIS policy will create an even greater burden on nonimmigrants who may wish to further their education while in the U.S. and will increase the case load of USCIS officers who adjudicate these applications.