Issues to Consider when Contemplating Changing Non-Immigrant Visa Status to F-1 or M-1

LAW IMM |

Issues To Consider When Contemplating Changing Non-immigrant Visa Status To F-1 Or M-1

LAW IMM Analysis:

Issues to Consider when Contemplating Changing Nonimmigrant Visa Status to F-1 (Academic Student) or M-1 (Vocational Student) Status

With the start of the New Year, some nonimmigrant visa holders (i.e. H-1B specialized workers, L-1 intracompany transferees, E treaty traders and investors, or B-1/B-2 temporary visitors) may be considering applying for F-1 (academic student) or M-1 (vocational student) visa to pursue academic or vocational courses in 2020 and beyond.

As part of this process, the current nonimmigrant status of the applicant is an important consideration. Certain visa holders, such as those in B-1 or B-2 status, are prohibited from enrolling in courses while their change of status is pending. These individuals can enroll in courses after they acquire F-1 or M-1 visa status. It bears noting that enrolling in courses when one is prohibited from doing so will result in a status violation. Nonimmigrants that violate their status will not be able to extend their status or change to F-1 or M-1 status. Conversely, certain nonimmigrant visa holders, such as E, H-1B, and L-1, are permitted to enroll in courses while awaiting a decision from USCIS for a change of status petition. However, for these particular visa holders, once their nonimmigrant status ends, they cannot complete any remaining courses. Instead, they will need to apply for F-1 or M-1 visa. (Note: If you are currently an M-1 student in the U.S., you may not change to F status in the U.S. Instead, you will have to apply for an F-1 visa outside the U.S.). To see if you are eligible to study as a nonimmigrant in the United States, you can refer to the Table published by ICE (Immigration and Customs Enforcement) at https://www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study.pdf).

Oftentimes, it can be quite confusing as to whether one can undertake academic studies immediately or whether a change of status petition is required. It is critical to be mindful that engaging in unauthorized studies without obtaining the proper approval from the USCIS can lead to severe consequences which include jeopardizing one’s current legal status in the U.S., but also damaging one’s future prospects of possibly obtaining other legal status. We strongly advise you to seek legal assistance on these types of applications. In particular, Pasricha & Patel, LLC offers many immigration services that can benefit individuals who are contemplating filing a change of status to an academic/student visa. Our firm will evaluate your individual circumstances and scenarios and advise regarding best options to pursue academic or vocational studies in the United States.

In order to apply to change to F-1 or M-1 status, one must meet all of the following conditions:

  • You must have been lawfully admitted to the U.S.
  • Your nonimmigrant status must remain valid.
  • You have not violated any conditions of your status.
  • You have not committed any crimes or engaged in any other actions that would disqualify you from changing your status.

It is important to note that one must take the following steps before USCIS can approve a change of status petition to F-1 or M-1 status:

  • Apply to and be admitted to a U.S. Student and Exchange Visitor Program (SEVP)-certified school.
  • Obtain an initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, from the SEVP-certified school. The Designated School Official (DSO) should give change of status in the Issue Reason section of the Form I-20.
  • Pay the I-901 SEVIS Fee.
  • File a Form I-539, Application to Extend/Change Nonimmigrant Status, with USCIS.

Another critical point is that all nonimmigrant visa holders must maintain their status while their Form I-539 change of status application is pending with the USCIS. If the USCIS has not made a determination on one’s application prior to the start date of the classes, it will be necessary to defer attendance and wait until the following term in order to start studies in F-1 or M-1 status. We strongly recommend working closely with a Designated School Official (DSO) and an immigration attorney to coordinate and plan a change of status filing. This becomes increasingly important today as in addition to program deferral, one must also maintain his or her current nonimmigrant status up to the date which is 30 days before the new program start date. Therefore, it may be necessary to file another Form I-539 in order to continue to maintain one’s current nonimmigrant status. This is a critical aspect that is often overlooked or clients are not aware of when they file a change of status to F-1 or M-1. Our firm can advise and recommend a suitable timeline in these matters to ensure that the case is presented to USCIS in an appropriate and timely manner.

Finally, due to the current backlog with change of status to F-1 and M-1, often, it may be more feasible to consider leaving the U.S. and utilizing consular processing to secure F-1 or M-1 status.
Please note that for consular processing, the following steps are required:

  • Apply to and receive acceptance from a SEVP-certified school.
  • Receive a new initial Form I-20 from your designated school official (DSO).
  • Pay the I-901 SEVIS fee.
  • Apply at a U.S. consulate or embassy for an F-1 or M-1 visa to travel to the United States in order to seek admission as a student.
  • If you are from a country where no visa is required, such as Canada, you may proceed directly to a U.S. port of entry or a U.S. pre-clearance/pre-flight inspection station and apply for admission to the United States as an F-1 or M-1 student.
  • Once admitted by an immigration officer in F-1 or M-1 status, you may begin your studies.

Please refer to USCIS’ webpage on changing to F-1 or M-1 visa status at https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/changing-a-nonimmigrant-f-or-m-student-status for further information in this matter.

Based on the above, it is evident that there are many potential complications which may arise in the process of attempting to secure F-1 or M-1 status. We encourage potential applicants to schedule a consultation with our office for further clarification on the above points and how it may affect your case.

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