• B1/B2 to F1/M1 Change of Nonimmigrant Status
  • September 22, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Change of Nonimmigrant Status from B1/B2 to F1/M1

    Persons in the United States on B1 (temporary visitor for business) or B2 (temporary visitor for pleasure) status are limited in the activities in which they can engage.  Among the prohibited activities for persons on B1 or B2 status is attending school as a student in the United Sates.

    On the other hand, it is possible for a B1 or B2 nonimmigrant to apply for a “change of nonimmigrant status” while in the United States in lawful nonimmigrant status.  However, as we will explain in the article, a B1 or B2 nonimmigrant cannot count on having an application for change of status to F1 or M1 student approved unless he or she expressed such an intent in obtaining a visitor visa.

    Challenge for Change of Status from B2 to F1/M1

    While applying for change of status from B1 or B2 to F1/M1 sounds good in theory, there is a significant issue in practice.  That is, in obtaining a B1 or B2 visa, a visa applicant must explain the purpose of his or her temporary visit to the consulate (or in a change of status application to the United States Citizenship and Immigration Services (USCIS)).  The purpose of the visit must be consistent with the list of permissible activities on B1 or B2 status.  If a nonimmigrant visitor arrives in the United States and subsequently applies for a change of status to nonimmigrant student, it may call into question whether visitor was forthright in his or her intentions when applying for a B1 or B2 visa.  Under 8 C.F.R. 248.1(c)(3), a change of status application from B1 or B2 to F1 or M1 will be denied as a matter of course if the applicant began attending school before the change of status application was approved.

    Additionally, the Department of State (DOS) has what is called the 30/60 day rule.  In effect, the rule means that if a nonimmigrant visitor behaves in a way inconsistent with the representations that he or she made in obtaining a visa, the DOS will presume that the visitor misrepresented his or her intentions at the time of entry (the presumption is rebuttable).  If the inconsistent behavior occurs between 30 and 60 days of entry, there will be no presumption of misrepresentation, but DOS may look at the case closely if the situation warrants it.  Both the DOS and the USCIS are vigilant about aliens using visitor visas to circumvent the normal procedures for applying for other nonimmigrant visas.  In Tsui v. Att’y. Gen. of the U.S., 445 F.Supp. 832 (D.D.C. 1978), a federal district court upheld the denial of a change of status from B2 visitor to F1 student because the evidence suggested that the aliens had entered under the pretext of tourism, but were actually intending students.  If a B1 or B2 visitor begins attending classes without the benefit of a change of status between 30 and 60 days of entry, the DOS will likely consider the student to have misrepresented his or her intentions at the time of entry.  The 30/60 day rule is not binding on the USCIS, and USCIS adjudicators may find that an alien misrepresented his or her intentions in obtaining a visa if the conduct in question occurs more than 60 days after entry.

    If a B1 or B2 visitor is interested in seeking a change of status to F1 or M1 student, it is important to consult with an experienced immigration attorney for an evaluation of the situation.

    Proper Procedure for Change of Status from B2 to F1/M1

    It is possible to obtain a B2 visa with the intent of changing to F1 or M1 student status.  In applying for a B2 visa, the prospective student must state that this is his or her intention at the consulate.  In order to be granted a B2 visa under these circumstances, the prospective student must submit evidence that he or she will be ultimately eligible for the change of status to F1 or M1.  If the application is approved, the prospective student will be approved for a B2 visa marked “prospective student.”  It is important for a prospective student to properly represent his or her intentions in applying for the B2 visa.  This option may be appropriate for a prospective student who intends to use a B2 visitor visa to visit schools before applying for change of status.

    Other Issues

    In order to be approved for change of status from B1 or B2 visitor to F1 or M1 student, the applicant must meet the financial support requirement for F1 and M1 status.  If the applicant cannot meet this requirement, the change of status application will be denied because he or she would not be eligible for F1/M1 status.  This is significant in that demonstrating requisite financial support to engage in a course of study is distinguishable from demonstrating the ability to support oneself during a stay on B visitor status.

    Conclusion

    In an applicant wants to visit the United States as an intending student, he or she should consider applying for a B2 visa as an intending student from abroad.  If a B1 or B2 visitor wants to apply for a change of status to F1 or M1 student status, he or she should consult with an experienced immigration attorney for a full evaluation before applying.  It is important to note that so long as a person is on B visitor status, he or she is not permitted to engage in activities that would only be permissible as an F1 or M1 student.