VISA STATUS CHANGES
Change of Status to that of F1 or M1 Student
There are two ways to obtain F1 or M1 student visa status. First, an individual may seek an F1 or M1 visa abroad. Second, an individual may seek a change from a nonimmigrant classification to that of a student from within the United States. In this article, we will examine general rule for change of nonimmigrant status to either F1 or M1. To learn about change of status from B visitor to F1 or M1, please see our article which specifically addresses that issue. Furthermore, please see our general article on change of status for more information.
Our post will reference the United States Citizenship and Immigration Services (USCIS) web page on the subject, last updated on February 6, 2018 . We will also reference section 248.7 of the USCIS Operating Instructions.
The F1 and M1 nonimmigrant visa categories for individuals to study in the United States. While many other nonimmigrant visa categories allow principal beneficiaries and, in some cases, dependents, to study in the United States, the caveat is that studying is not the primary purpose of these other visa category programs, which permit school enrollment only if the individual otherwise maintains his or her nonimmigrant status. For example, the USCIS article on change of status to F1 or M1 advises that “individuals in [E nonimmigrant] status can enroll in school as long as it does not interfere with their ability to maintain their E status” (emphasis added).
Notably, B nonimmigrant visitors are not permitted to study in the United States while in B status. Studying is not among the allowable activities in B1 status or B2 status. However, under certain circumstances, a B visitor may be granted change of status to F1 or M1 status. To learn more about change of status from B to F1 or M1, please see our article specifically dedicated to that subject.
Thus, there may be two reasons why a nonimmigrant would seek to change status to F1 or M1. First, the nonimmigrant may consider applying for a change of status if his or her nonimmigrant status does not allow studying in the United States. Second, a nonimmigrant may consider a change of status if he or she wants to attend school full time and doing so would not be possible (or practical) while maintaining a separate nonimmigrant status, even if such status does not prohibit studying. For example, while no nonimmigrant visa categories intended for employment technically preclude studying, the fact that an individual must work in the capacity for which his or her status was granted would often make it unlikely, if not impossible, for the individual to simultaneously be a full time student.
Situations in Which Change of Status to Student Status is Impossible
There are three cases in which change of status is impossible.
First and second, K and S nonimmigrants may not change status to F1 or M1 student status.
Third, OI 248.7(e) makes clear that “[a]n application for change from M1 to F1 classification must be rejected.” However, the OI allows for a change of status from M1 to F1 in the limited circumstance where “a student has been incorrectly classified” as M1 instead of F1. Please see our short companion article to read about the process for changing status in this situation [see article].
Basic Requirements for Changing Status
In order to change status to that of an F1 or M1 student, the applicant must first be eligible for change of status in the first place. The individual must have been (1) lawfully admitted to the United States as a nonimmigrant; (2) be in valid nonimmigrant status; (3) have not violated the conditions of such status; and (4) have not committed any crimes or engaged in any actions that would make him or her ineligible for a change of status.
The USCIS website explains that individuals should never assume that a change of status has been approved until they receive a notice of approval from the USCIS. In order to have a change of status to that of a student approved, the individual must complete the following steps (quoted):
1. Apply to and receive acceptance from a U.S. Student and Exchange Visitor Program (SEVP)-certified school.
2. Obtain an initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, from the SEVP-certified school. The Designated School Official (DSO) should give change of status in the Issue Reaction section of the Form I-20.
3. Pay the I-901 SEVIS Fee.
4. File a Form I-539, Application to Extend/Change Nonimmigrant Status, with USCIS.
Individuals must file the Form I-539 with fee and in accordance with the form instructions. An individual seeking change of status to F1 or M1 must satisfy all of the normal requirements for establishing eligibility for F1 or M1 status.
If an individual’s current nonimmigrant status does not permit him or her to enroll in classes, he or she may not enroll in classes until the change of status application is approved. This issue primarily affects B1 and B2 nonimmigrants who are applying for a change of status. The USCIS website explains that if the USCIS has not adjudicated the change of status application at least 15 days before the program start date in this scenario, the individual should contact his or her DSO. If the request is not granted prior to the start date of classes, the individual “will need to defer attendance and wait until the following term in order to begin … studies at the school in F or M status.”
Nonimmigrants who are not prohibited from studying by their status may enroll in classes prior to the change of status being approved. However, those individuals must maintain their nonimmigrant statuses until the change of status application is approved. For example, an E nonimmigrant seeking change of status to F1 would be able to enroll in classes prior to the change of status application being adjudicated because E nonimmigrant status does not preclude studying. However, the individual would still be required to maintain his or her E nonimmigrant status until the change of status application is approved. Violating or otherwise not maintaining E status would render the individual ineligible for change of status to F.
Gap in Status
A difficult situation arises if an individual’s current nonimmigrant status lapses more than 30 days prior to his or her F1 or M1 program start date. The USCIS website makes clear that, under current policy, the individual “must find a way to obtain status all the way up to the date that is 30 days before [the] program start date.” In most cases, this would require the individual to seek an extension of his or her current nonimmigrant status, if eligible, by filing a separate Form I-539, Application to Extend/Change Nonimmigrant Status. It is important to note that, although the individual’s application for change of status to F1 and extension of his or her current nonimmigrant status would both be filed on the Form I-539, these would constitute separate applications. For this reason, the individual would be required to file two separate Form I-539s, each with filing fees.
If an individual’s nonimmigrant status lapses before 30 days prior to his or her F1 or M1 program start date, the USCIS will deny the change of status application. This is because change of status is only available to an individual who is actually maintaining a nonimmigrant status.
As we noted in the prior section, an individual may have to defer his or her program start date to the following academic term if the USCIS does not approve his or her change of status application prior to the start of the term that the individual originally intended to commence studies. If the individual’s current nonimmigrant status is expiring in this scenario, he or she must obtain an extension until the new program start date. Thus, the USCIS advises that, in some cases, an individual who had already filed a Form I-539 to bridge one gap “may need to file another I-539 to bridge the new gap.”
Alternative Option: Depart and Apply from Outside the United States
An individual who is in the United States in one nonimmigrant status and who wishes to study in F1 or M1 status may also depart and seek F1 or M1 status at a consulate abroad. In this case, the individual must follow all of the requirements for seeking an F1 or M1 nonimmigrant visa from overseas. Individuals from countries from which no visas are required, “such as Canada, … may proceed directly to a U.S. port of entry or a U.S. pre-clearance/pre-flight inspection station and apply for admission to the United States as an F1 or M1 student.” Once admitted to the United States in F1 or M1 status, the individual would be permitted to begin his or her studies.
It is not uncommon for an individual in a non-student nonimmigrant status to decide that he or she wants to study in the United States. Such an individual is strongly advised to consult with an experienced immigration attorney for case-specific guidance. In the event that the individual and his or her attorney determine that an F1 or M1 visa would be appropriate, the attorney may advise the individual on the steps he or she needs to take to obtain the visa, and whether this would best be achieved through change of nonimmigrant status or seeking a visa abroad. Furthermore, if the individual applies for change of status and requires extensions of stay in order to bridge the gap between the expiration of his or her current status and his or her program start date, an attorney will be able to assist the individual in navigating this process. This is especially important for individuals seeking change of status from B to F1 or M1 due to the fact that B nonimmigrants are not permitted to study in the United States.
Change of Status to that of F1 or M1 Student