ASK MR. LIBERTY
© Stephen H. Davis 2012
An officer at the headquarters of the Immigration Service (formerly INS; now USCIS) was quoted by the Washington Post that “immigration is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.” The “Ask Mr. Liberty” column has appeared in various ethnic newspapers since the 1980s; the articles were written in the hope of enlightening the public about immigration mysteries, questions and concerns. Below is one of the numerous legal issues of obfuscation that we encounter at our law office daily for immediate analysis, solution and advice.
CAN I GO TO SCHOOL IF I ENTERED THE U.S. AS A VISITOR?
(B-2 VISA TO F-1 VISA)
Dear Mr. Liberty,
I entered the U.S. under a B-2 visa to stay with relatives. I have two years at University of the Philippines. I want to graduate from a U.S. university. Am I allowed to enroll in school while in B-2 status? If not, how do I become a legal student. Thank you.
Maria, prospective college student
The good news is that you can change status from visitor to student. However, under the regulations, at 8 CFR 214.2(b)(7), you are specifically prohibited from studying in the United States while in B-1 or B-2 status.
Before enrolling in classes, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status. Enrolling in classes while in B-1/B-2 status will result in a status violation. Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in classes, are not eligible to extend their B status or change to F-1 or M-1 status. (M-1 status is for vocational and trade schools). These regulations provide no exceptions.
A change of nonimmigrant status from B-2 to F-1 may be requested when as applicant:
· You have not yet enrolled in classes
· Your current status has not expired
· You have not engaged in unauthorized employment
F-1 nonimmigrants, as defined in Section 101(a)(15)(F) of the Act, are foreign students coming to the United States to pursue a full course of academic study in a Student and Exchange Visitor Program (“SEVP”) approved schools. “Full course” is usually 12 credit hours per semester. A nonimmigrant student may be admitted for duration of status (“D/S”). This means that you are authorized to stay in the U.S. for the entire length of time during which you are enrolled as a full-time student in an educational program and any period of authorized practical training plus sixty days. While in the U.S. you must maintain a valid foreign pasport unless you are exempt from passport requirements.
The first step is to apply to a school in the U.S. The school must be a Student and Exchange Visitor Program (“SEVP”) – certified school. It is necessary to show sufficient funds for the first year (or more) of study. Once you are accepted to an SEVP-certified school, your school will give you a document called a Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status – For Academic and Language Students. The Form I-20 is a paper of record of your information in the Department of Homeland Security (“DHS”) database called Student and Exchange Visitor Information System (“SEVIS”). Each school that accepts you will mail you a Form I-20 A-B (your copy is known as I-20 ID). Once you have your Form I-20, you are ready for the next step – paying your SEVIS fee pursuant to Form I-901, to-wit: $200. This is payable on-line.
I encourage prospective students to work closely with their designated school official (“DSO”) to coordinate the timing of applying for change of status and enrolling in classes.
The next step to change your nonimmigrant status from B-1/B-2 to F-1 is to file an Application to Extend/Change Nonimmigrant Status (Form I-539), and include the required fee, to-wit: $290 and documents listed in the filing instructions. Make sure your Form I-20 information matches that on your SEVIS I-901 fee form.
It is very important that you must be accepted by the school, college, university which is SEVP-certified first as a pre-requisite. You must be in possession of a valid Form I-94, Arrival/Departure card (usually stapled in your passport).
The U.S. Department of State (“USDOS’), at U.S. Embassies and American Consulate General posts generally inform prospective students about the procedures for obtaining an F-1 visa prior to coming to the U.S. It is acceptable for prospective students to come to the U.S. to look for a school to attend. In such cases the B-2 visitor applicant is expected to notify the American Consul (“AmCon”) of his or her intent. Also the visitor is expected to notify the DHS, U.S. Customs and Border Protection (“CBP”) officer/inspector at the port of entry that he/she is coming to look at prospective schools to attend.
In the absence of the notation on the B-2 visa in the passport or on Form I-94, as “prospective student” schools will advise that a change of status (“COS”) application be filed on or after the prospective student has physically been in the U.S. for at least 90 days.
Most schools through their international students office/international education advisor/foreign student advisor will mail the COS application to USCIS. Make sure you obtain a photocopy of all the forms, filing fee/s, supporting documents, covering letter, and that the package is sent certified mail, return receipt requested. Immigration lawyers have learned from prospective clients that the government informed them that it did not receive the package or it was not received prior to the expiration of stay on their I-94. Normal processing time is 90 days, but this is not guaranteed and some applications have taken many months. You cannot attend classes until your status is approved as indicated on an on-line status check or you receive the Notice of Action – Approval on Form I-797.