Change of Status
A person can change from one nonimmigrant visa (NIV) status to another pursuant to INA §248 using Form I-539. NIV temporary workers use I-129. Absent extraordinary circumstances, an applicant must be in lawful status to change status.
1. Changing to Student Visa: A B-1/B-2 visa holder cannot attend school until the change of status to F-1/M-1 has been approved. 8 CFR §248.1(c)(3).
2. Changing out of Student Visa: F-1 students are given their duration of stay plus a 60 day grace period to depart the U.S. after F-1 status completes. A person may change status during that 60 day grace. Form I-20 must have the original signature of the designated school official, must be filed with I-539 to change or extend status. If application is approved it will be stamped and returned. For prospective J-1 applicants use DS-2019.
3. Problem if school start more than 30 days past B-2 expiration: USCIS takes position that change of status from B-2 to F-1 cannot be granted if start date for school exceeds 30 days past expiration of B-2.
4. Intent Problem: If applicant is trying to change status from B-2 to F-1 and the change of status is filed within 60 days of entry, the Service will consider the B-2 admission as improper because the applicant had a preconceived intent to enter as a student (which is a violation of the B-2 requirements). A school certificate that was received prior to entry is evidence of preconceived intent to enter with alternative motives.
Change of Status (C/S) Unavailable to Some Categories
Under 8 CFR §§248.1(c)(1), 248.2, some categories cannot change status (C/S):
1. Inadmissible persons.
2. C (transit); D (crewmembers); K (fiancée), J (Exchange visitor- if subject to a 2 year foreign residence requirement; unless waived), Transit Without Visa,