Many people who are already in the US in a nonimmigrant status decide that they would like to enroll in school. There are typically three options depending on that person’s status: see if they are eligible to attend classes without changing to F-1 status, apply for a new visa at a US embassy or consulate and then reenter, or file a USCIS form I-539 to change status within the US. This article will focus primarily on the third option of changing status within the US.
Those seeking a change of status within the US should be aware of some general requirements for the process. First, they must have been admitted in a nonimmigrant status of some kind. Second, that status must remain valid at the time of filing. Third, they cannot have violated the conditions of their status, committed crimes, or been placed in removal proceedings.
Changes of status take time. Often, this is the primary reason that people will choose to leave the US rather than wait for a change of status. Waiting on USCIS could mean that they are spending months waiting for a response and even missing the start of classes. In many cases, starting classes without an approval would violate their current nonimmigrant status. However, during the pandemic and for many other reasons, many individuals prefer to do the change of status within the US.
Typical processing times can be seen on the USCIS processing times page, but take note that they are not entirely reliable. They are at best averages, and in many times vastly overstate the typically processing times. Changes of status are notoriously slow and have only increased during 2020.
Not every case is the same, but for most people filing a change of status to an F-1 nonimmigrant requires the following steps:
Do not assume that because a form I-539 is pending that you are allowed to start classes. USCIS sometimes requires “bridge applications” to be filed as necessary to ensure that an applicant is in status up to the 30-day period before their program is scheduled to start, or the deferred start date in the event it had to be deferred. This can even require multiple bridge applications.
Here are some common questions that frequently arise for people changing status to study as an F-1 nonimmigrant.
Most individuals cannot start classes if they have not been approved for their change of status. This is unfair and can cause big headaches for students, but unless their current status permits enrolling in school, actually starting classes would be a violation of their status. Read what USCIS has to say:
If you are requesting to change from another nonimmigrant status to F or M student status and your current nonimmigrant status does not permit you to enroll in classes, do not enroll in classes or begin your studies until USCIS has approved your change of status. If USCIS has not adjudicated your change of status at least 15 days before the program start date on your Form I-20, contact the DSO at your new school. If USCIS does not grant your request to change status prior to the start date of classes, you will need to defer attendance and wait until the following term in order to begin your studies at the school in F or M status.
https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment/changing-to-a-nonimmigrant-f-or-m-student-status
However, some nonimmigrant statuses do permit studying, and not all types of education are treated the same under immigration law. The best practice is to check with the school DSO or an immigration attorney to confirm that your status does allow a full-course of study. In some instances, full time study is not permitted but part time is.
It’s extremely important to be sure that you are permitted to enroll in classes before starting school. If there is a mistake, you could be determined to be out of status and there may be long-term consequences. US Immigration and Customs Enforcement has created a chart which describes which nonimmigrant statuses can enroll in full-time studies, including their spouses and dependents.
Many people seeking to transfer to F-1 status are in B-1 or B-2 visitor status. Sometimes, visitors are accepted into a program and want to start on their original start date. However, they should be cautious because a full course of study is not allowed for a B-1/B-2 nonimmigrant. As USCIS describes, ” the regulations at 8 C.F.R. § 214.2(b)(7) specifically prohibit a course of study in the United States while in B-1 or B-2 status.”
USCIS has unfortunately interpreted the law in a very rigid and unforgiving way that can create serious problems for people seeking a change of status to enroll in full-time classes. In some cases, bridge applications are required to maintain lawful status.
USCIS has taken the position that a nonimmigrant with a pending change of status must make sure that they maintain lawful status throughout the period of time that they wait for a response from USCIS. Regulations allow USCIS to approve a change of status up to 30 days before the educational program is going to start. See 8 CFR 214.2(f)(5)(i). If a change of status has not been decided, students will be deferred by their school to a later start date. Frequently, they won’t then be able to maintain status until 30 days before their start date. USCIS now requires a bridge application to be filed to cover that time.
A bridge application is one which is used to cover the period of time following approval of an application and before starting another status, usually F-1 or H-1B. For example, if a B-2 nonimmigrant files a change of status to F-1, they will often be required to file a bridge extension of their B-2 status up until the 30-day period before they begin classes. Bridge applications are inherently risky because they often are filed prior to receiving a decision on a prior extension. If they later receive a denial on that initial application and were then out of status when the bridge was filed, it will not cover the gap in lawful status.
In most cases, B-1/B-2 nonimmigrants would need to file both a change of status to F-1 status and an extension of status of the B-1/B-2 status. If the change of status is still not approved within the time requested in the extension, a new extension must be filed. USCIS describes this process on its website:
Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before your new program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.
https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment/changing-to-a-nonimmigrant-f-or-m-student-status
Because these applications are complicated and unforgiving, it’s a good idea to discuss your personal situation in detail with a school DSO or an immigration attorney.
F-1 Students