ON July 20, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced a new policy that individuals applying for change of status (COS) from Visitor (B), or other non-immigrant status, to F-1 student, no longer need to also apply for an extension of status while their initial F-1 COS application is pending.
According to the USCIS announcement, under the previous USCIS policy, applicants needed to maintain their existing non-immigrant status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status. If there was more than a 30-day “gap” between the expiration of their existing non-immigrant status, and the start of the school semester, the COS to F-1 (student) could be denied.
The problem was USCIS was taking too long to process and approve COS requests to F-1 student. Even though a person in visitor status may have timely filed the COS before the expiration date on their I-94, and the start date of the school semester was within 30 days of expiration, USCIS was taking so long, that the semester had already begun and therefore the school moved the start date to the next semester, which was beyond 30 days from the expiration of their visitor visa status.
In that case, USCIS denied the change of status application, as the new start date was now beyond 30 days from the expiration of their existing non-immigrant status. USCIS had suggested that in order to maintain continuous status while the request for COS to student status is pending, the person had to also file an extension of their existing non-immigrant status. As the USCIS stated as part of their previous policy, “In order to remain eligible for a change to F-1 status, the individual must file an application to extend his or her current non-immigrant status in order to bridge the gap in time between the current nonimmigrant status expiration date and the 30-day period before the F-1 program start date.”
That old policy created confusion and resulted in many denials, because although people had timely filed for changes of status to student, they did not realize they were also supposed to file for an extension of their existing nonimmigrant status. The new policy does away with the need to file an extension of the prospective student’s existing nonimmigrant status.
From now on, to prevent a “gap” in status, “USCIS will grant the change of status to F-1 effective the day we approve an applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status. If we approve an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time. An example of a violation would be engaging in employment, including on-campus employment, more than 30 days before the program start date as listed on their Form I-20.”
The USCIS believes this new policy will reduce workload and costs for both the applicants and USCIS. USCIS is revising the Form I-539 instructions to reflect these changes.
This new policy will likely also reduce the number of denials of COS, based on a person inadvertently overlooking to also file an extension of their existing non-immigrant status. But it is also important that while a change of status is pending, you do not violate the terms of your existing status, such as by working.
If you filed for a change of status to student, but were denied because of your inadvertent failure to “bridge the gap” between the expiration of your existing nonimmigrant status and the approval of the F-1 change of status, you may want to consult with an attorney who can evaluate your situation and determine if perhaps a belated motion to reopen or reconsider is possible, provided you have not been working or otherwise violated the terms of your existing status.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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