We would like to inform our readers that a new development has been occurring in recent months involving Form I-539 change of status applications filed by prospective students. Students applications wishing to change their status from a B-2 visa classification to F-1 must proceed with caution. USCIS has recently been issuing denials for such change of status applications that request a change of status from a B-2 nonimmigrant visa classification to F-1 student status. These denials have been issued, despite the fact that applicants have seemingly filed their application in a timely and proper manner with USCIS. To submit an application in a timely manner, it is required that the applicant file an I-539 change of status application with USCIS, prior to the expiration of their underlying B-2 status, as indicated on the applicant’s I-94 arrival/departure record. An additional problem that has been occurring involves the delayed adjudication of these applications with the California Service Center. In delaying the processing of these applications, designated school officials (DSO) have been forced to defer student program start dates that appear on the SEVIS form, before adjudication of the applicant’s change of status application has been completed. The unfortunate cause of these delays has resulted in a discrepancy between the deferred program start date and the ending B-2 visa status or the date USCIS adjudicated the I-539 application to change status.
The Code of Federal Regulations, 8 CFR §214.2(f)(5)(i), the governing body of law in this area stipulates that “an F-1 student may be admitted [to the United States] for a period up to 30 days before the . . . program start date listed on the student’s Form I-20 Certificate of Eligibility for Nonimmigrant F-1 Students.” USCIS interprets this language to mean that the applicant is required to maintain their B-2 nonimmigrant visa status until 30 days before the start date of classes, otherwise the change of status application will be denied by USCIS. This interpretation of 8 CFR §214.2(f)(5)(i) and 8 CFR §248.1(b) is a departure from prior practices that have been followed by the California Service Center and Vermont Service Center which adjudicate these types of applications. It is worth noting that it appears that the denials thus far have been issued by the California Service Center only. While this may suggest that this issue is limited only to the adjudication of I-539 change of status applications to F-1 that are being processed by the California Service Center, that is not so say that future denials will not be issued by the Vermont Service Center.
This phenomenon was recently brought to the attention of USCIS Headquarters on November 1st by the American Immigration Lawyers Association (AILA).
Here is how USCIS responded:
USCIS has indicated that it agrees with the practice that the California Service Center has followed thus far which has resulted in the denial of certain I-539 change of status applications to F-1 student status. USCIS highlighted that the I-539 change of status form instructions specifically state:
A change of status may be granted for a period up to 30 days before the report date or start date of the course of study listed on Form I-20. You must maintain your current, or other, nonimmigrant status up to 30 days before the report date or start date of the course of study listed on Form I-20 or your requested change of status may not be granted.
Although the decision to deny an I-539 change of status application based upon these rules is discretionary, it now appears that this protocol is being strictly enforced by USCIS across the board. USCIS has recommended that in this situation, applicants must file an application to extend their nonimmigrant B-2 status to prevent a gap of time from forming between the expiration date of the applicant’s current nonimmigrant B-2 status and the 30-day period before the new F-1 program start date, in order to remain eligible for a change to F-1 status. Failure to extend the B-2 nonimmigrant classification, will result in a denial of the I-539 change of status application from B-2 to F-1 visa classification, if there is a gap between your B-2 expiration date and the 30-day period preceding the start date of your F-1 student program.
USCIS has acknowledged that the enforcement of this practice has been problematic and that the delay caused by USCIS in processing these applications in a timely manner, has been much to blame. USCIS has agreed to investigate these issues further, however it must be emphasized that this practice will continue.