B1/B2 to F1 Change of Status

[Damian7893 0]

Hi, my name is Damian and i’m currently in the US on a B2 status.
I have always been true to the purpose of obtaining my Visa from the Consulate as the Visa was approved solely for the purpose of TAKING A SCHOOL ADMISSION QUALIFYING EXAMINATION and ACADEMIC TOURISM. 

I notified the CBP officer of my intention to take the Admission qualifying Exams at the POE.
Unfortunately, my Visa was not annotated “Prospective Student”. 
I have gained admission into a SEVIS school and I wish to change my Status from B2 to F1. 
 Do I qualify to change my status? Does the preconceived intent rule affect me?

Edited May 1, 2020 by Damian7893

[geowrian 22,337]

Preconceived intent should not be an issue here as you are switching from 1 NIV to another.

The bigger issue is doing COS to F-1. The timing for this is very limited...I'll defer to others for specifics but I think the practical window for anything this year has long passed (and your B-2 won't last until the next semester).

In nearly every case, returning home to do the F-1 visa path makes more sense.

[Damian7893 0]

4 minutes ago, geowrian said:

Preconceived intent should not be an issue here as you are switching from 1 NIV to another.

The bigger issue is doing COS to F-1. The timing for this is very limited...I'll defer to others for specifics but I think the practical window for anything this year has long passed (and your B-2 won't last until the next semester).

In nearly every case, returning home to do the F-1 visa path makes more sense.

Thanks for the response. I read on the uscis website that we can still submit a COS application and the timeline depends on the service center.

[geowrian 22,337]

6 minutes ago, Damian7893 said:

Thanks for the response. I read on the uscis website that we can still submit a COS application and the timeline depends on the service center.

Yes, you can submit a COS application. Timelines do depend on SC.

That said, the practicalities make doing COS from B to F-1 a dangerous path. I've seen more people get themselves into trouble by doing so than having success....usually due to the strict timelines and a very unknown COS processing timeline (often 6+ months...probably longer now).

Edited May 1, 2020 by geowrian

[Damian7893 0]

3 minutes ago, geowrian said:

Yes, you can submit a COS application. Timelines do depending on SC.

That said, the practicalities make doing COS from B to F-1 a dangerous path. I've seen more people get themselves into trouble by doing so than having success....usually due to the strict timelines and a very unknown COS processing timeline (often 6+ months...probably longer now).

I checked the timeline for the SC closest to me. It’s between 6-8 months.  I intend to also file an extension of status simultaneously to bridge the timeline gap because I have to be in status while the COS is pending.

 Do you think i will encounter other problems?

Edited May 1, 2020 by Damian7893

[geowrian 22,337]

6 minutes ago, Damian7893 said:

I checked the timeline for the SC closest to me. It’s between 6-8 months.  I intend to also file an extension of status simultaneously to bridge the timeline gap because I have to be in status while the COS is pending.

 Do you think i will encounter other problems?

There is no way to know which SC you will get assigned. It is not based on location...it gets assigned based on internal rules to USCIS.

 

I'll move this thread to the student visa forum for greater exposure by people that can likely fill you in more with the details. The issue is more about that than the tourist visa (as noted, intent won't be an issue here in terms of COS).

There is one member in particular that is like a guru, although I can't seem to tag them right now. Hopefully they can chime in.

 

Maybe I can tag @SusieQQQ for input? They have a lot of info on student visas IIRC...

 

* Moved from Tourist Visas to Student & Exchange Visas *

Edited May 1, 2020 by geowrian

[Damian7893 0]

8 minutes ago, geowrian said:

There is no way to know which SC you will get assigned. It is not based on location...it gets assigned based on internal rules to USCIS.

 

I'll move this thread to the student visa forum for greater exposure by people that can likely fill you in more with the details. The issue is more about that than the tourist visa (as noted, intent won't be an issue here in terms of COS).

There is one member in particular that is like a guru, although I can't seem to tag them right now. Hopefully they can chime in.

 

Maybe I can tag @SusieQQQ for input? They have a lot of info on student visas IIRC...

 

* Moved from Tourist Visas to Student & Exchange Visas *

THANK YOU VERY MUCH SIR

[SusieQQQ 11,587]

Ok so there are a number of issues here. “Preconceived intent” - how long ago did you enter the US? When did you apply to the school? When are you supposed to start at your school? I’m going to disagree with geowrian here and say that intent is an issue, because “change of nonimmigrant status” is indeed one of the “immigration benefits” listed that falls under the misrepresentation guidelines (as is extension of stay request, by the way). (See Section B part 3 https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3 )

 

I don’t believe you can file both an EOS and COS at the same time. In any case filing an EOS for B2 requires you to explain how you will leave the US after the extension so using it as a bridge to F1 doesn’t seem likely to work. The problem with changing status to F1 is it requires aligning of factors: you cannot be in F1 status more than a certain period (I think it’s a month) before your studies begin, but the processing times for COS are long and variable so getting this timing right is extremely difficult. If the decision goes much past the start date of the course, there are problems too. We have seen as a result, that many people who try to do this are denied simply for timing. Now, here flows the crux of your problem: because of the time it takes to process COS, you will very likely be past your i94 authorized stay by the time it is adjudicated. If it is denied, your existing visa gets immediately cancelled and you cannot apply for another outside the country of nationality of your passport. Getting another NIV after that has happened could be quite difficult. 
 

I also need to clear up a misconception here:

49 minutes ago, Damian7893 said:

to bridge the timeline gap because I have to be in status while the COS is pending.

After your i94 has expired, you are out of status. A pending EOS or COS, properly and non-frivolously filed, means you are not accruing unlawful presence, but you are out of status. It is only if that EOS or COS is approved that you retroactively get put back into status. This also means that after a denial, apart from having to immediately leave (no grace period) and getting your existing visa cancelled, you will also have to answer “yes” to the question of whether you ever overstayed a visa on future applications.

 

so you can see that the route you are contemplating is fraught with potential pitfalls. 

 

So here is the logical thing for you to do: go back home, apply for a F1, and then return within the validity of the F1 to start your studies. That way you know you have the timing right and don’t risk visa cancellations etc. Plus, it will also end up being much faster than waiting for an i539 to be adjudicated, even with the current closure of routine visa services. You obviously already have a ticket home so it’s just the ticket back to the US, which can’t possibly be more than the cost of staying in the US for however long you are currently planning. 

Edited May 1, 2020 by SusieQQQ

[geowrian 22,337]

Thanks for posting the detailed info!

 

4 minutes ago, SusieQQQ said:

I’m going to disagree with geowrian here and say that intent is an issue, because “change to another nonimmigrant status” is indeed one of the “immigration benefits” listed that falls under the misrepresentation guidelines. (See Section B part 3 https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3 )

Agree to disagree on this item. 👍 That's fair. I have not seen any actual issue with this type of COS so long as no misrepresentation was made at POE.

Edit: And I think we agree that the F-1 visa path is much preferred due to risks involved.

Edited May 1, 2020 by geowrian

[SusieQQQ 11,587]

8 minutes ago, geowrian said:

Thanks for posting the detailed info!

 

Agree to disagree on this item. 👍 That's fair. I have not seen any actual issue with this type of COS so long as no misrepresentation was made at POE.

Edit: And I think we agree that the F-1 visa path is much preferred due to risks involved.

Well - that was why I asked about timing. Although uscis notes that they are not bound by the 90 day rule, they also indicate they use it as a factor in deciding.  Fact remains it is listed in the manual as one of the benefits that can be found to have been misrepresented. And only OP  knows what was asked and answered at PoE, vs what was subsequently done. The manual also specifically notes that the burden of proof is on the applicant, not the government. 

Edited May 1, 2020 by SusieQQQ

[Damian7893 0]

22 minutes ago, SusieQQQ said:

Ok so there are a number of issues here. “Preconceived intent” - how long ago did you enter the US? When did you apply to the school? When are you supposed to start at your school? I’m going to disagree with geowrian here and say that intent is an issue, because “change of nonimmigrant status” is indeed one of the “immigration benefits” listed that falls under the misrepresentation guidelines (as is extension of stay request, by the way). (See Section B part 3 https://www.uscis.gov/policy-manual/volume-8-part-j-chapter-3 )

 

I don’t believe you can file both an EOS and COS at the same time. In any case filing an EOS for B2 requires you to explain how you will leave the US after the extension so using it as a bridge to F1 doesn’t seem likely to work. The problem with changing status to F1 is it requires aligning of factors: you cannot be in F1 status more than a certain period (I think it’s a month) before your studies begin, but the processing times for COS are long and variable so getting this timing right is extremely difficult. If the decision goes much past the start date of the course, there are problems too. We have seen as a result, that many people who try to do this are denied simply for timing. Now, here flows the crux of your problem: because of the time it takes to process COS, you will very likely be past your i94 authorized stay by the time it is adjudicated. If it is denied, your existing visa gets immediately cancelled and you cannot apply for another outside the country of nationality of your passport. Getting another NIV after that has happened could be quite difficult. 
 

I also need to clear up a misconception here:

After your i94 has expired, you are out of status. A pending EOS or COS, properly and non-frivolously filed, means you are not accruing unlawful presence, but you are out of status. It is only if that EOS or COS is approved that you retroactively get put back into status. This also means that after a denial, apart from having to immediately leave (no grace period) and getting your existing visa cancelled, you will also have to answer “yes” to the question of whether you ever overstayed a visa on future applications.

 

so you can see that the route you are contemplating is fraught with potential pitfalls. 

 

So here is the logical thing for you to do: go back home, apply for a F1, and then return within the validity of the F1 to start your studies. That way you know you have the timing right and don’t risk visa cancellations etc. Plus, it will also end up being much faster than waiting for an i539 to be adjudicated, even with the current closure of routine visa services. You obviously already have a ticket home so it’s just the ticket back to the US, which can’t possibly be more than the cost of staying in the US for however long you are currently planning. 

Thanks Sir for the comprehensive explanation.

1. I have been in the US since February.

2. I applied last month (April)thats more than  62 days after arrival.The exam was taken in March. hence I contacted the school after 62 days of arrival 

3. My school is start in early September.

4.Can you give  more explanation on this timing? I heard F1 status can’t be granted more than 30 days before the program start date.

Edited May 1, 2020 by Damian7893

[Damian7893 0]

10 minutes ago, SusieQQQ said:

Well - that was why I asked about timing. Although uscis notes that they are not bound by the 90 day rule, they also indicate they use it as a factor in deciding.  Fact remains it is listed in the manual as one of the benefits that can be found to have been misrepresented. And only OP  knows what was asked and answered at PoE, vs what was subsequently done. The manual also specifically notes that the burden of proof is on the applicant, not the government. 

At the POE, I categorically mentioned i was going to take an exam that will qualify me for Admission. My visa was approved for that purpose too. I never misrepresented my intent

[SusieQQQ 11,587]

14 minutes ago, Damian7893 said:

At the POE, I categorically mentioned i was going to take an exam that will qualify me for Admission. My visa was approved for that purpose too. I never misrepresented my intent

There is a difference between taking an exam that ”qualifies for you for admission” (if that is the way you stated it), and actually applying for admission. Did you say that if you passed the exam you planned on applying and trying to change status? 

The fact that you highlighted “62 days” a couple of times interests me. It sounds like you were following the old 30/60/90 days rule. Now, it’s just 90 days, though. (That is described in the link to the USCIS manual I posted earlier.) Obviously, 90 days has not yet passed.
 

18 minutes ago, Damian7893 said:

Can you give  more explanation on this timing? I heard F1 status can’t be granted more than 30 days before the program start date.

Yeah, that was part of the point of highlighting why it could be a problem. If you happen to have fast adjudication and it’s too soon to be in F1, they’ll deny you. If it takes too long and goes too far past your start date you could have problems actually registering. Then you can’t meet the requirements of your F1 status.

 

What are you planning to do in the US until September? You obviously can’t work.

[arken 4,197]

Approval depends on other factors as well but my few points in terms of legality and hurdles:

Let’s say your class/semester official start date is Sep 10.

1. Your F1 COS will be denied if the officer reviewing at the time sees your B2 status is expiring more than 30 days before Sep 10. 
F1 COS if approved before 30 days of Sep 10 will be effective from 30 days before Sep 10 that’s why you need to maintain status at least up to within 30 days of Sep 10.

 

2. If your B2 status is expiring more than 30 days before Sep 10, you need to file for B2 extension well in advance so that the officer reviewing your F1 COS sees your pending B2 extension.

 

3. If an officer reviews your COS file after Sep 10, your COS will be denied. Only if your school updates your SEVIS with the deferred start date which could be for the same semester or another semester starting in Jan, then your COS will be processed accordingly. So make sure they do that if you do not hear any update from USCIS by end of August.
 

 

[Damian7893 0]

59 minutes ago, arken said:

Approval depends on other factors as well but my few points in terms of legality and hurdles:

Let’s say your class/semester official start date is Sep 10.

1. Your F1 COS will be denied if the officer reviewing at the time sees your B2 status is expiring more than 30 days before Sep 10. 
F1 COS if approved before 30 days of Sep 10 will be effective from 30 days before Sep 10 that’s why you need to maintain status at least up to within 30 days of Sep 10.

 

2. If your B2 status is expiring more than 30 days before Sep 10, you need to file for B2 extension well in advance so that the officer reviewing your F1 COS sees your pending B2 extension.

 

3. If an officer reviews your COS file after Sep 10, your COS will be denied. Only if your school updates your SEVIS with the deferred start date which could be for the same semester or another semester starting in Jan, then your COS will be processed accordingly. So make sure they do that if you do not hear any update from USCIS by end of August.
 

 

Thanks for the reply. The exact reason I said I was going to file for an extension of status is  to keep me in status pending when the COS is approved.  From what i can infer from your reply, an approval can be gotten prior to 30days of the Start date. But it won’t be effective and i will remain in B2 status till 30 days before the program start date where with will be activated. Right?

Also if I don’t hear from uscis after the program start date, i should contact my school to update the Sevis start to a new date right?

Edited May 2, 2020 by Damian7893