New USCIS Rule for B-1 and B-2s Wishing to Become F-1 Students
USCIS recently updated its rules about change of status from a tourist or business status to F-1 student status. Due to this rule change, we are starting to see a lot of clients requesting help with RFEs that they have received from the United States Citizenship and Immigration Services (USCIS). The USCIS is now requiring that students maintain status up to 30 days before they intend to enroll in school.
Background Change of Status to Student
USCIS regulations have never permitted those in the United States in B-1 business status or B-2 tourist status to enroll in or attend school. To enroll in school, you must be in F-1 or M1 status. Sometimes it is easier to get B-1 or B-2 status and visit the United States to scout out a college or school to attend. Once you have identified the best college or school, you would apply through change of status for USCIS permission to enroll. Nothing about this policy has changed.
How the USCIS Change in Policy Affects Pending Change in Status Requests
To consider how the new policy change affects B-1 or B-2 status holders in filing a change of status application, we need to understand when people file for change of status and how long it takes the USCIS to adjudicate that request. Let’s look at this change through a worked example.
Let’s assume Bob is in B-2 status and that expires on January 31, 2017. Bob applied to change his status to F-1 status with a start date at the school of June 30, 2017. He submitted his application for change of status on January 15, 2017 while he was still in status. Under the old rule, the USCIS would have adjudicated and probably approved this change of status request. Bob succeed because he filed before his status expired.
Under the new rule, Bob will receive an RFE request. The USCIS RFE will cite the fact that USCIS requires Bob to maintain his status until at least May 30, 2017. The RFE requests will invite Bob to file another I-539 extension of status/change of status application with another fee to fill in this gap.
How to Respond to These New RFE Requests
A lot of people who receive these RFE requests are complaining about having to submit another I-539 extension of status request and pay an extra fee. They argue that as they submitted under the old rule, the USCIS should grandfather their application.
Reasonable people could differ on how best to deal with this problem. We are a very pragmatic immigration law firm, believing that achieving our clients’ goal is our most important duty. We therefore prepare and file a new I-539 request for extension of stay to fill-in the client’s status gap. Once we have the receipt for this request we included with our response to the RFE.
Other attorneys may choose to argue with the USCIS. It may be the case that they will be successful. Alternatively, the USCIS may issue them denials. As you may not appeal the denial of a change of status request, it is difficult to see how this route will lead to achieving the client’s goals.
How We Can Help
If you are trying to change your status to enroll in or attend school and have a pending request with the USCIS, we can assist you in responding to an RFE that you receive. If you would like to get help with this issue, please contact us for a strategy consultation.
