Eligibility for Change of Status – Applying in the U.S.
The Immigration and Nationality Act prohibits change to or from certain non-immigrant categories. Some aliens are in a classifications that does not allow for a change of status in the United States (for example, J1s subject to the two-year home rule are ineligible to change status in the US).
Maintenance of status
An applicant for change of status must be "in status" at the time he or she applies for the change. If an applicant has failed to maintain the terms and conditions of his or her non-immigrant status (for example, by working without authorization, failing to engage in the activity that was the basis for holding that status, etc.), then a change of status application cannot be approved. Please note that the primary visa holder (such as F1) must be in valid status before the dependent (F2) can change status. Your current non-immigrant status may not expire more than 30 days before the report date of your new I-20.
An application for change of status must also be filed in a timely fashion, which means that it must be received by USCIS before the period of previously authorized stay expired. It is extremely important to abide by the timely filing requirement, since staying the U.S. beyond the period of stay authorized can lead to severe immigration penalties.
Completeness of forms and documentation
USCIS adjudicators report that the most common reason for denial is that the forms are not complete and/or the documentation is inadequate. You must carefully check over your application before submission. Some other common errors include:
- The application is not signed in blue ink
- The required fee is not attached, is not in the proper amount, or the check is not signed or properly completed
- Outdated or incorrect application forms are used
USCIS officials have the right to exercise discretion in applications for change of status. The following are possible areas of inquiry by USCIS officials:
- Financial ability
An F-1 applicant is required to show sufficient funding to cover tuition and living expenses. You must prove to USCIS that you will not need to resort to unauthorized employment in order to support yourself in the U.S. and that you will not become a public charge.
- Preconceived intent
If USCIS believes that at the time you entered the U.S. in your current non-immigrant status you had a "preconceived intent" to actually be in the status now being requested, the application for change of status can be denied on the theory that you tried to circumvent the visa process by entering on one visa and then changing to another status after entry.
USCIS takes several things into account when considering whether an applicant may have had a preconceived intent, including the time between entry in one status and an application to change status and when and how quickly the applicant began taking steps towards obtaining the new status.
- Immigration history
It is possible that the USCIS adjudicator will inquire about your non-immigrant history. The adjudicator is looking to see if there were periods of unauthorized employment in your history, whether you are currently maintaining status, and whether you are restricted from using the new category based on having used the category before.
- Non-immigrant intent
Linked to the immigration history inquiry is an inquiry as to whether you continue to have temporary "non-immigrant" intent. If the USCIS believes that the application for change of status is just an attempt to prolong your stay in the U.S. indefinitely, USCIS may deny the change of status application on the theory that the alien "abandoned" his or her non-immigrant intent. USICIS will take into account any steps towards applying for permanent residency in determining whether you continue to have non-immigrant intent.
- Status of a non-immigrant while an application for change of status is pending
Generally, non-immigrants who have filed a timely application for change of status can remain in the United States while their application is being adjudicated by USCIS. This assumes that the person was in valid non-immigrant status when he or she filed the application.
Change of Non-immigrant Status from F2 to F1
Applicants for a change of status from F-2 to F-1 status are not permitted to begin a full course of study until their application has been approved by the USCIS. Specifically, "An F-2 spouse may not engage in a full course of study, but may engage in study at an SEVP-certified school in the United States as long as they are enrolled in less than a full course of study. The F-2 spouse may still engage in study that is merely avocational or recreational in nature. To engage in a full course of study, an F-2 spouse must apply for and be granted F-1, M-1, or J-1 status..". Also, "An F-2 child may engage in study at an SEVP-certified school in the United States as long as they are enrolled in less than a full course of study at the postsecondary level. An F-2 child may also engage in recreational or avocational study. To study full-time at the post-secondary level, the child must apply for and be granted F-1, M-1, or J-1 status."
Therefore, an individual in F-2 status may take no more than 3 courses per session in the IELP, no more than 11 credits in an Undergraduate program, and no more than 8 credits in a Graduate program.
Change of Non-Immigrant Status from B1/B2 to F1
Applicants for change of status from Visitor for Business or Pleasure (B-1/B-2) status to Non-immigrant Student (F-1) status are not permitted to begin a full course of study until their application has been approved by the USCIS.
"Visitors may, however, engage in study that is avocational or recreational in nature. In some cases, a B-2 child is allowed to study if accompanying a parent and the study is incidental to the reason for the parent traveling to the United States. For example, missionaries may enter as a B-2 and the children may attend K-12 school while the parent is pursuing the primary purpose of the visit. The length of stay will not be extended to allow a minor child to complete a school year. B nonimmigrants that apply for a change of status to an F or M nonimmigrant student may not begin attending school until the change of status is approved."
Therefore, an individual in B1/B2 status may take no more than 1 class per session in the IELP or a Continuing Education program and may not take any classes in a Matriculated program (Undergraduate or Graduate).
Please see the following website for details on study guidelines and restrictions for Nonimmigrant visa holders: https://www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study.pdf