Notice of Decision, what file a motion will give me?

[Rafa_and_Dani 1]

Hi everyone,

I am trying to help a friend, he filed to change his tourist vista(B1-B2) to a student visa(F1). He just received a letter denying the change. We are wondering what could we archive but filing a motion. Considering he was denied because of the statement below.

Your "B" nonimmigrant status expired on July 15 2016. Review of your SEVIS shows that your program start date is August 28 2016 more than 30 days after your "B" status expired. A search of users databases does not reveal any other application filed by you or on your behalf that would extend your previously-accorded status to within 30 days of the anticipated start date of your classes. Therefore, you cannot maintain a valid nonimmigrant status up to 30 days before the program start date and are not eligible for the requested change of status. As such, users must deny this application.

The form the school provided to send to USCIS had a start date of May 15 2016. So what the motion would do? Allow for a second review? Maybe a correction the dates?

Thanks

Rafael

Edited September 2, 2016 by Rafa_and_Dani

[Merrytooth 5,748]

Similar case here

http://www.visajourney.com/forums/topic/594303-probably-mistake-from-uscis-change-nonimmigrant-status-denied/

[lurkingAround 1]

Just to add something here for anyone who applies for changing of status from tourist to student.

You must ensure that you have enrolled and started classes as a FULL-TIME student on the date in your application, so that your SEVIS will record your starting date correctly. If you do not do so and wait to enroll when you get an approval letter, the starting date in SEVIS will be updated until you actually enroll and start your classes. As a results, the starting date could easily pass your I94 expiry.

[jan22 3,056]

Just to add something here for anyone who applies for changing of status from tourist to student.

You must ensure that you have enrolled and started classes as a FULL-TIME student on the date in your application, so that your SEVIS will record your starting date correctly. If you do not do so and wait to enroll when you get an approval letter, the starting date in SEVIS will be updated until you actually enroll and start your classes. As a results, the starting date could easily pass your I94 expiry.

But you cannot start studying until you have been granted the change of status. What this means is, you need apply for the change of status far in advance of the start date on your I-20, not that you should start studying ahead of time. When your start date has passed, schools will usually update your SEVIS record to the next available start date, which is what happened it the OP's case. You cannot rely on a start date that you have no expectation of meeting. Edited September 20, 2016 by jan22

[Boiler 45,510]

You need to be in status to adjust status.

[lurkingAround 1]

"But you cannot start studying until you have been granted the change of status. What this means is, you need apply for the change of status far in advance of the start date on your I-20, not that you should start studying ahead of time. When your start date has passed, schools will usually update your SEVIS record to the next available start date, which is what happened it the OP's case. You cannot rely on a start date that you have no expectation of meeting."

Don't know how you get a vote up... But I spoke from my own experience. I entered this country in August. File for change of status in early January. Started the class in late January. Got approved in April (remember my I94 had been expired in Feb).

My International Student Counselor told me exactly that I needed to enroll and start school right away, so that I would be OK when the USCIS checks my status. I don't know which counselor the OP went to. I went to a public community college, not a for-profit university or private language school. Go figure...

As Boiler said, you need to be in status (legal) to change status. If you do not enroll and start classes as a full-time (legal status) at a school but wait, there is NO evidence that your start date is the date in your application. Your status will expire the same date your I94 expires. I20 date can be changed/updated at anytime when SEVIS is updated, and vice versa. Because the OP has his I20, it does not mean it is an updated version. I had many versions of I20 myself when I updated certain information (including SEVIS). And for those who want to change status from F1 to H1B or permanent, remember to save all I20 versions because you need to prove that you have been in status AT ALL TIME in the country.

Also, SEVIS and I20 are completely 2 different documents. However, you need both in order to stay in status.

Edited September 21, 2016 by lurkingAround

[Boiler 45,510]

Rock and Hard Place for the OP as he entered on a B which does not normally allow studying, the type you would need a F1 for anyway.

H4 for example, would be different.

I did read somewhere that if you intend changing to F1 from a B you should have your entry noted accordingly. Maybe this is why?

[lurkingAround 1]

"I did read somewhere that if you intend changing to F1 from a B you should have your entry noted accordingly. Maybe this is why?"

That's why there is a 90-day grace period. If you come into the country as B, you must have been in the country for at least 90 days before you apply for change of status to student. If you attempt to do so before 90 days have passed, they will automatically reject your application due to the intention. After 90 days, you are OK to apply for change of status; however, whether or not it gets approved is depended on the USCIS. Though, the USCIS can't use reason of "intention" to come in and change the status anymore because of 90 days period I mentioned. An immigration lawyer would mention that.

Edited September 21, 2016 by lurkingAround

[Boiler 45,510]

Intent is determined on entry.

[lurkingAround 1]

"Intent is determined on entry."

That determination is done only at getting a visa and entry. It is not that simple. People who work outside of the country and inside the country have 2 different rules to follow. I will give you an example. If you have successfully changed your status here (approve to F or H1B), you may leave the country BUT you will have to go back to your home country and get the visa type you have been approved. By law, you are supposed to get the visa approved; however, that is not the case. You could be denied the visa because (again) by law (outside of the country), you intended to go into the country and change your status. Talk about catch-22...

Laws in the book may not be what they are practicing...

[Boiler 45,510]

Until you receive approval from USCIS, do not assume the status has been approved, and do not change your activity in the United States. For example, if you are currently a nonimmigrant tourist, do not begin attending school as a student until you have received authorization from USCIS to change your status. If you fail to maintain your nonimmigrant status, you may be barred from returning to and/or removed (deported) from the United States. Your authorized status and the date your status expires can be found in the lower right-hand corner of your Form I-94, Arrival-Departure Record.

https://www.uscis.gov/visit-united-states/change-my-nonimmigrant-status-category/change-my-nonimmigrant-status

I have certainly come across cases where the Consulate has taken a dim view of those who have changed status and then subsequently applies for a visa.

I do not know the current situation but change of status seems to be easier than getting a visa, which I assume is why many people have done it. But unless you are happy being landlocked at some point, you will need a visa.

I have not heard of the 90 day rule.

[jan22 3,056]

"But you cannot start studying until you have been granted the change of status. What this means is, you need apply for the change of status far in advance of the start date on your I-20, not that you should start studying ahead of time. When your start date has passed, schools will usually update your SEVIS record to the next available start date, which is what happened it the OP's case. You cannot rely on a start date that you have no expectation of meeting."

Don't know how you get a vote up... But I spoke from my own experience. I entered this country in August. File for change of status in early January. Started the class in late January. Got approved in April (remember my I94 had been expired in Feb).

My International Student Counselor told me exactly that I needed to enroll and start school right away, so that I would be OK when the USCIS checks my status. I don't know which counselor the OP went to. I went to a public community college, not a for-profit university or private language school. Go figure...

As Boiler said, you need to be in status (legal) to change status. If you do not enroll and start classes as a full-time (legal status) at a school but wait, there is NO evidence that your start date is the date in your application. Your status will expire the same date your I94 expires. I20 date can be changed/updated at anytime when SEVIS is updated, and vice versa. Because the OP has his I20, it does not mean it is an updated version. I had many versions of I20 myself when I updated certain information (including SEVIS). And for those who want to change status from F1 to H1B or permanent, remember to save all I20 versions because you need to prove that you have been in status AT ALL TIME in the country.

Also, SEVIS and I20 are completely 2 different documents. However, you need both in order to stay in status.

You lucked out. Unfortunately, International Student Advisors -- even those with the best of intentions -- do not always give good information; sometimes it doesn't get caught, sometimes it does and the student is the one who suffers. The minute you start studying on a B visa, you are out of status; the act of starting your studies does not grant you legal status as a student. If that were the case, there would be no need for student visas -- anybody could enter on a B visa, start studying and then apply to change status. And, as you correctly agreed -- you need to be in status in order to change it. The correct thing to do if your B status is not far enough in the future to reach your proposed student start date is to first apply for an extension of your B status -- that maintains your status until a decision is made on the change of status. You then immediately file for the change of status to F1 student. That's what USCIS meant (in the OP) when they said a search was done on databases to see if there was any other application on file that would have preserved that person's status long enough to reach the school start date. There wasn't, so the application was denied.

Perhaps my vote up (whatever you are meant on that) is because of my +20 years of experience as a consular officer. Because of that I am well aware that SEVIS and the I-20 are two different documents. However, when USCIS is adjudicting a change of status request, they look at the SEVIS record and not the I-20. Schools -- good ones, at least -- will monitor the status of the individuals to whom they have issued I-20s. And, if a student has shown that they cannot meet the entry date on the I-20 because they are waiting for a change of status (or a visa, for those outside the US), the school will update the SEVIS record to the next possible start date for the student, which shows USCIS that the school will still accept the student at the later date. Having both of those documents are needed before you can be granted student status; however, having both of them does not mean that you automatically have student status or keep in you status. For example, all of the individuals applying for student visas also have those two documents, but they don't have legal status to study in the US.

While it may have worked out for you, it will usually not for most people.

[jan22 3,056]

Rock and Hard Place for the OP as he entered on a B which does not normally allow studying, the type you would need a F1 for anyway.

H4 for example, would be different.

I did read somewhere that if you intend changing to F1 from a B you should have your entry noted accordingly. Maybe this is why?

I think what you're remembering is the annotation that is used for applicants who have indicated an intention of studying in the US, but have not yet selected a school. They are applying for a B visa to go and check out schools. The visa can be issued with the annotation that the person is a "Prospective Student". That lets the immigration officer know that the person told the consular officer during the visa interview about his/her intent to study and the visa officer took that into account when deciding if the person overcame the presumption of intending immigration anyway. Makes a change of status decision easier for USCIS.

[Boiler 45,510]

I think what you're remembering is the annotation that is used for applicants who have indicated an intention of studying in the US, but have not yet selected a school. They are applying for a B visa to go and check out schools. The visa can be issued with the annotation that the person is a "Prospective Student". That lets the immigration officer know that the person told the consular officer during the visa interview about his/her intent to study and the visa officer took that into account when deciding if the person overcame the presumption of intending immigration anyway. Makes a change of status decision easier for USCIS.

That was no doubt it.

[lurkingAround 1]

The minute you start studying on a B visa, you are out of status; the act of starting your studies does not grant you legal status as a student. If that were the case, there would be no need for student visas -- anybody could enter on a B visa, start studying and then apply to change status. And, as you correctly agreed -- you need to be in status in order to change it. The correct thing to do if your B status is not far enough in the future to reach your proposed student start date is to first apply for an extension of your B status -- that maintains your status until a decision is made on the change of status. You then immediately file for the change of status to F1 student. That's what USCIS meant (in the OP) when they said a search was done on databases to see if there was any other application on file that would have preserved that person's status long enough to reach the school start date. There wasn't, so the application was denied.

Now I understood why you answered the OP that way. There is nothing wrong with the answer, and your answer follows the rules exactly the way they are. It is a good way to follow and I am not against it. Nevertheless, those rules have loop holes in their own self. You are honest in work and would never give any possible work around, and I respect that. What I went through may be seen as a work around.

No, I did not say that the act of starting your studies grants legal status as a student. It is the way to play by rules in order to fix the starting date (I believe). I may be lucked out, but again it could also be from my starting date which was still valid when they reviewed. It is possible that the way they review is to look at the starting date and the expiration of I94. I don't know their reviewing process.

By the way, I have no intention of encouraging people to come and stay in the country by using B visa and change it.