St. Louis Immigration Lawyer Jim Hacking Discusses Changing Status From Visitor to Student

If you came to the United States on a B2 visitor visa, but have since decided to begin school and request a change of status to an F1 student visa, you should consider a number of factors as described below:

• First, it is important to know that a pending application to change status, Form I-539, does not bestow any legal status.  Even if an I-539 is filed before an individual’s visitor status expires and the I-539 remains pending after that status expires, the individual will be considered out of status despite the fact that he has a pending application.  USCIS may still approve the change of status despite the fact that the prior visitor visa has expired, but the visitor visa is void as of the day the individual overstayed the approved period of time.  Thus, if the I-539 is denied, the individual is out of status, must return to his country immediately, and will no longer be able to travel to the US on his visitor visa.
• Second, an individual with a pending application to change status, Form I-539, must continue to comply with the requirements of his visitor visa until the change of status is approved, even if the visitor visa expires.  An individual on a visitor visa cannot work or attend school in the United States.  Thus, the individual must continue to comply with these restrictions until his change of status is granted and his new status as a student becomes operative.  Failure to do so could result in denial of his I-539.
• Another consideration for an application for change of status should be timing and the effect of intent.  If a request to change from a visitor visa to a student visa occurs within 60 days of entry, the United States Citizenship and Immigration Service (USCIS) views the individual's admission to the United States on the visitor visa as improper because they presume he had the "preconceived intent" to enter as a student.  If an I-539 is filed within 60 days of entry, USCIS will presume that the individual intended to come to the United States as a student, not a visitor.  There are even cases where an application to change status was denied when an I-20 was requested from a school within 45 days of entry but the I-539 was not filed until later.  If an individual admitted as a visitor decides after he arrives to stay in the United States to pursue studies, the process to change status should generally not begin until 60 days after arrival.
• Regardless, if an individual decides after entry as a visitor to stay in the United States and pursue his studies on a student visa, the application to change status, Form I-539, must be filed before the visitor status expires.  A change of status will not be approved for an individual who failed to maintain his status (as discussed above) or whose status expired before the application was filed.  Failing to file an application to change status before visitor status expires can only be excused in the discretion of USCIS if the delay was due to extraordinary circumstances beyond the control of the individual.