The B-2 visa is granted to a foreign national that wants to travel to the United States to spend time for pleasure on a temporary basis. Depending on the applicant and other factors, it may be a single or multiple entry visa. Regardless of the entry category and whatever the expiration date on the visa, when the B-2 visa holder visits the country, the person is admitted for no longer than 6 months on entry. If the B-2 visa holder wants to extend the period of stay, the person could do so before the 6-month period expires; however, the person is not permitted to have an aggregate stay of more than a year during any one visit. While on the B-2 visa, the foreign national is expressly prohibited from going to school.
On the other hand, when a foreign national wants to study in the United States, the person must apply for an F-1 student visa from the United States consular office overseas. Obviously, the requirements for eligibility for the B-2 visa are significantly different from that of the F-1 visa. Thus, consular officers use different criteria to evaluate what makes an applicant qualify for either under the circumstances. Though an applicant in either visa category needs to demonstrate ties to the country of origin, for the B-2 visa applicant, the financial requirements to fund the person’s stay while in the United States may not be as high as that of the F-1 visa applicant. The F-1 visa applicant must demonstrate and provide proof of sources of funds that are sufficient to support the entire cost of study while in the United States. This due diligence on financial capacity becomes extremely important when viewed in light of the constraints that are imposed by the country’s immigration laws on the foreign student, especially in the area of employment.
Sometimes, there is foreign national who decides to attend school while in the country on the B-2 visa. This decision may be genuine. However, the timing of the decision, the lengthy nature of the admissions process and satisfying admissions requirements for university or college makes such a decision quite suspicious to USCIS officials when a B-2 visa holder wants to change to F-1 visa status to enable school attendance. To USCIS officials, it does appear the B-2 visa holder merely used the ability to acquire a visitor’s visa to circumvent the rigorous vetting process required for the F-1 visa. Thus, there is a higher threshold question of intent that must be satisfied for change of status petition approval.
The closer the admissions decision is made relative to the B-2 visa holder’s entry date, the more suspicious it appears that the person had a preconceived intent to go to school. Thus, such B-2 to F-1 change of status applications do face a high level of scrutiny. These petitions should be filed towards the end of the B-2 visa’s validity period to stand any chance of defeating the preconceived intent basis for petition denial. This, however, must be supported by credible evidence that goes to show that the decision to switch from visitor to student did not happen overnight but was a deliberative process that took a lot of time to develop subsequent to the B-2 visa holder’s entry into the country. This illustrates why getting a favorable decision can be difficult because USCIS officials are familiar with admissions timelines of most universities and colleges in the country. Even if they have no idea about a specific college, the information is merely a click or a phone call away.
Generally, an F-1 student with a visa issued by the United States consular office in the home country may enter the United States 30 days prior to the program start date. This gives ample time to attend any orientation activities that may be necessary for the student’s matriculation. This 30-day period between the date of permitted entry and program start date is the abyss in which the change of status applicant may fall because the person did not know the rules, or that the officials of the prospective school did not provide proper guidance on the intricacies of the transition process from B-2 to F-1.
The B-2 visa holder may apply and get admission to a US university or college during the visit. The issue of change of status, when the clear intention to make the change from visitor to student is genuinely made later in the visit, then falls on timing and the eligibility of the visitor for the change. Given an F-1 student has a 30-day grace period in which the person may seek entry into the United States, it follows then that the B-2 visa holder who has gained a recent admission to a US university or college should be in valid immigration status 30 days prior to the program start date to be eligible for change of status. In other words, the B-2 visa holder’s period of authorized stay should not end prior to this 30-day period. If the math is not done right, an unwitting B-2 visa holder may fall into this trap leading to a denial of the petition.
Really compounding the transition problem are two factors. First, the B-2 visa holder cannot under any circumstances begin taking classes unless the transition to F-1 status has been effectively granted. Attending class on a B-2 visa is a violation of status and may have serious adverse consequences for the violator in future immigration matters. Second, the adjudication period for a B-2 to F-1 change of status petition has been increasing over time. While USCIS directs the applicant to submit the petition at least 45 days before the program start date, the truth is that it takes over 4-5 months for USCIS to issue a decision. As noted earlier, the B-2 visa holder is generally given 6 months to stay in the country on entry. Because the B-2 visa holder cannot form the intent to attend school too early in the visit, with such a lengthy adjudication period, it is inconceivable a violation of status does not occur unless the person takes appropriate measures to prevent this from happening.
So the change of status applicant is caught in limbo. On one hand, the person cannot start taking classes without violating the applicant’s current B-2 visa status. On the other hand, the decision on the change of status application is not happening quickly enough for the person to know whether it would be granted so that the wait does not extend beyond the period of authorized stay as that would also be a violation of B-2 status.
To avoid such a situation, the prospective student coming to the United States should declare the intention to attend school to the United States consulate back in the home country to ensure that is taken into account when applying for the visitor’s visa. This allows the consulate overseas to take into account the eligibility of the student visitor for the F-1 such that when the B-2 visa is favorably decided, it smoothens the path to approval of the change of status petition when subsequently filed in the United States. But this is a proactive method that works when the student accepts admission and is diligent about the process to avoid potential issues of misrepresentation down the road in the change of status petition.
The potential B-2 to F-1 change of status applicant should contact an immigration attorney the moment the person decides to attend university or college in the United States during the visit. This minefield could be treacherous if the situation is not treated with the delicate touch it deserves because of the reasons given above on preconceived intent and the whole nature of the admissions process. The applicant’s date of entry into the United States, the amount of time left in B-2 status and the program start date have to be analyzed carefully to determine the best cause of action to take. In addition, the time USCIS takes to process and adjudicate change of status petitions is also an important consideration. Based on the above factors, it could be that in certain situations, while filing a change of status petition in the United States is certainly more convenient, it may not be the best solution to the problem. Getting on a plane to go back to the home country to do consular processing, even if more expensive, could be the more prudent option for the prospective student. On other occasions, an immigration attorney can fashion a way out without the need to travel overseas by the visitor prospective student. It all depends on the unique facts that are peculiar to the prospective student under the circumstances.
