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B-2 to F-1 Change of Status Applicants Face Abrupt USCIS Headwind: The Need to Extend Status

Last updated on Aug 31st, 2017

Lately, many potential F-1 students, trying to change status from B-2 to F-1, have faced a headwind: that headwind is insistence by USCIS that certain B-2 to F-1 change of status applicants must have have filed a Form I-539 application for extension of status in order to have their change of status application granted.

The particular B-2 to F-1 change of status applicants who have faced this headwind are those applicants whose B-2 status expired no more than 30 days before the original start date of the applicant’s academic program and whose original start date was delayed (generally because USCIS did not complete the adjudication of the change of status application) to a date that did not fall within 30 days of the B-2 status expiration.

The problem that many potential F-1 students run into is that they do not learn of the need to file an extension of status application until after their B-2 status expires, until they are out of status. This is a problem because a potential F-1 student must (generally) have maintained lawful status since admission in order to be eligible for an extension of status. There is an exception, however.

The exception to this general rule is contained in regulation 8 C.F.R. § 214.1(c)(4). The regulation provides that a late-filed extension of status application may be granted when the applicant shows that

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

A granted extension of status would be back-dated to the time the noncitizen’s B-2 status expired.

USCIS had held the position that a B-2 to F-1 change of status applicant did not need to apply for an extension if his or her academic program’s start date was deferred, so long as the original start date of the applicant’s academic program did not fall more than 30 days after the expiration of the applicant’s B-2 status.

USCIS’ current position is a fairly new one. USCIS published its current position, on the agency’s website, on April 6, 2017. The change of positions did not receive any significant media coverage and has since flown under the radar. The need to file an extension catches some immigration lawyers and university officials off guard.

Immigration rules do sometimes abruptly change and without any fanfare. Many potential F-1 students unfortunately are learning this lesson.

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