November 29, 2020

Volume X, Number 334

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Changing U.S. Visa Status from Visitor to Student

As “travel ban” news causes foreign-national visitors to the U.S. to reconsider leaving the country for fear of being unable to return on a newly secured visa, we reiterate some tips about switching from B (visitor) to F-1 (student) status.

It is not uncommon for foreign nationals visiting the United States to decide to remain to pursue studies. However, a visitor (B-1 or B-2 visa holder) generally cannot attend school before changing to student status. The recommended process for changing from B to F or M (student) visa status is to return to one’s home country for consular visa issuance of a student visa.

As a general rule, it is important that a B-visa holder’s intent and actions not suggest an intent to pursue studies prior to attaining student status. Intentions are expressed at the time of consular application and airport admission.

Under U.S. immigration law, there are two alternative processes to accomplish this visitor-to-student change (“B to F”). Either way, an individual must change visa status before attending classes.

  1. Change of Status in U.S. Process (not recommended):

One option is to file Form I-539, Application to Extend/Change Nonimmigrant Status, with United States Citizenship and Immigration Services (“USCIS”) while physically present in the U.S. If approved, the individual’s status will be converted from B to F by USCIS. This route is not optimal because: 1) most of these applications are denied, 2) no studies may commence until approved, 3) a denial decision affects the individual’s status and future applications, and 4) a fraudulent intention may be inferred from a quick B to F change (the so-called “30/60/90 day rule”).

  1. Consular Visa Interview Process (recommended):

A second option is to depart the United States with a new I-20 issued in the past 30 days and apply for an F visa using DS-160, Nonimmigrant Visa Application, at the U.S. consulate or embassy in the foreign national’s country of residence. This alternative is preferable because: 1) the F visa is valid for five years, making a longer stay possible, 2) the U.S. consulate (not USCIS) is the “expert” in F-visa issues, such as ties to the home country and non-immigrant intent, and 3) the individual preserves a cleaner immigration history. Once the F visa is issued, the individual can enter the U.S. and begin studies immediately.

Given the implications of misrepresentation that can arise when an individual enters the U.S. with a B visa and then applies for a change of status to F, it is advisable for individuals to depart the U.S and undergo a foreign consular interview for F-visa issuance. By timely departing from the U.S. and applying for an F visa abroad, an individual can avoid the issue of preconceived intent. If an individual wishes to enter the U.S. to visit schools and learn more about particular degree programs, a B visa is suitable. However, it is recommended that individuals then depart the U.S. and apply for an F visa at a U.S. consulate or embassy in their home country.

© Copyright 2013 - 2020 Miller Mayer LLP. All Rights Reserved.National Law Review, Volume VII, Number 142
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About this Author

Hilary T. Fraser, Miller Mayer, work authorizations attorney, immigration benefits Lawyer
Partner

Hilary T. Fraser has practiced immigration law at Miller Mayer since 1991.

Ms. Fraser represents EB-5 families, physicians, engineers, teachers, and other highly trained professionals, as well as hospitals, colleges, IT companies, and religious organizations, in pursuit of work authorizations and other immigration benefits. Ms. Fraser has presented at national conferences on immigration office staffing and U.S. immigration agency practice. Prior to law school, Ms. Fraser lived in China and New York City, where she worked as a teacher and writer...

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