Change of Status Denied and I-94 expired – What are my options?

Change Of Status and Timely Filing

  • When a person present in the United States in one nonimmigrant (temporary) status wishes to engage in a primary activity permitted only under a different nonimmigrant status, a Change of Status (“COS”) is required to be filed with United States Customs and Immigration Service (“USCIS”). For example, if a tourist on B-2 visa decides to attend school, he would have to change his nonimmigrant status from B-2 to either F-1 or M-1 (“Student Visas”).
  • Timely filing of the COS is one of the factors which affects outcome of the filing. Hence, a COS application must be properly filed before the your authorized stay (I-94) expires.
  • It is recommend that you apply at least 45 days before your I-94 expires.

Options for Changing Status

There are two options to change your nonimmigrant visa classication:

  1. Consulate Processing

    Under this option, you would have to leave the United States, and apply for the appropriate visa at a U.S. consulate abroad (which may require an approved nonimmigrant petition depending on the visa category).
    Once your visa interview is approved, you would be able to reenter the United States in the new nonimmigrant classification.

  2. Change of Status while remaining in the United States

    Under this option, a petition will have to be filed with USCIS to request a COS to a different non-immigrant classification. Once USCIS approves the COS, you will receive an approved I-797 Approval Notice with a new I-94. The I-94 will show the approved time you are permitted under the nonimmigrant classification in the United States.

Change of Status pending while I-94 has Expired

USCIS can take several weeks to approve a COS. In many cases, although you may have filed the COS with USCIS on time, because of the processing delays, your current I-94 might have already expired while you await a decision from USCIS on the pending COS.

There are two options:

  • You can either continue staying in the United States awaiting COS decision from USCIS. You will have to then make your next move, based on the USCIS decision.
  • You can leave the United States while COS decision is pending. However, once you leave the country, your change of status application is considered abandoned.

Will I accrue “Unlawful Presence”, if I continue staying in the United States after I-94 expiry, until my Change of Status Application is pending?

NO. Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your change of status application is pending if it was filed prior to the expiration of your I-94. Hence the 3/10 year bar for “unlawful presence” will not apply in your case, even if the COS is later denied.

Can I be placed under Removal Proceeding if my Change of Status Application is pending, and my I-94 has expired?

YES. Your lawful nonimmigrant status ends and you are considered “out of status” when your Form I-94 expires, even if you have timely applied to change your nonimmigrant status. Although, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your change of nonimmigrant status request. It is however, possible that Department of Homeland Security (“DHS”) may bring a removal proceeding against you, even if you have an application for change of status pending.

What happens when my Change of Status Application is Approved?

If your application for a change of status is approved, you will receive an approved I-797 Notice from the USCIS, along with a new I-94. The I-94 will be backdated and adjusted to the date your previous I-94 expired. As a result your status during the pendency of your COS application will then be considered to have been lawful.

Since your nonimmigrant visa classification has changed, the next time you leave the United States, you would have to schedule an appointment at the U.S. Consulate in your home country (or a Third Country, if allowed in a few situations), and get your visa stamped at the consulate, before you can be admitted in to the United States on the new nonimmigrant classification.

What happens if my Change of Status Application is Denied?

  • If your application is denied, you should depart the United States immediately. If you continue staying in the United States, you will begin accruing “Unlawful Presence”, and a 3/10 year bar may be applied to all your future entries in the United States.
  • Also, any nonimmigrant visa in your passport granted in connection with your classification will become void. Although, there wouldn’t be any stamp on your passport suggesting it is void, an entry would have been made in the computer systems making your visa void for future entry. So, for example if you have a 10 year multiple entry B1/B2 visa, and if you had applied for a change of status to F-1 which was subsequently denied, your B1/B2 would become void. Any future entries on B1/B2 without obtaining a new visa may be disallowed.
  • If you wish to enter the United States in future, on same or different classifcation, you must submit a new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).

What is SEVIS?

“SEVIS” is also known as Student and Exchange Visitor Information System program.

Who maintains SEVIS records?

  • Approved F, M and J Visa institutions in the United States are required to keep computerized data on students, exchange visitors, accompanying family members.
  • The computerized records would include information such as current address and status at the institution of the above person(s).
  • Students will pay a SEVIS (I-901) fee at the time of admission.

Who administers the SEVIS program?

For F and M visas, Immigration and Customs Enforcement (“ICE”) administers the SEVIS program.

How would ICE know about the student status and enrollment at the institution?

Under SEVIS, educational institution is required to report to ICE when the Student:

  • Commences a full course of study.
  • Drops below a full course of study.
  • Transfers schools.
  • Extends stay.
  • Is reinstated to status.
  • Engages in employment.
  • Reports or fails to report within 30 days of the institution’s registration deadline. The 30 day requirement is based on “program start date” for new students and “next session start date” for continuing students.

F Visa

What is an F-1 Visa?

  • F-1 visa is issued to a bona fide student who is qualified to pursue a full course of study.
  • F-1 student should have a foreign residence without an intent of abandoning it.
  • F-1 student should have an intent enter the United States, solely for the purpose of pursuing a course of study at an established institution of learning. The institution should be approved by Immigration & Customs Enforcement (“ICE”) in compliance with Student and Exchange Visitor Information System (“SEVIS”).

How do I obtain an F-1 Visa?

  • You will have to apply in a particular program at a school in the United States. The school must be enrolled in SEVIS and qualified to issue an I-20.
  • An I-20 is issued by a designated the international student adviser at the school, after you have qualified with the school’s admissions requirements. You will also have to present a proof that you have the financial resources for pursuing the particular program at that school.
  • Based on the signed and approved I-20, you will have to apply at a United States embassy or consulate in your home country to obtain an F-1 visa.
  • Consulate will issue an F-1, only after verifying the SEVIS I-20 and data in SEVIS system. F-1/F-2 will be denied if no SEVIS record in the system.
  • An F-1 student may apply 120 day before the program start date. However consulate will inform the student that he may not enter the U.S. more than 30 days in advance.
  • The 120- and 30-day rule does not apply to returning students (renewals) who may be issued an F visa and return to school any time as long as they are maintaining status and their SEVIS records are current.
  • F-1 students are part of the “Visa Interview Waiver Pilot Program”, and many not need an interview to renew their visa if they are continuing the same program or attending the same institution.

What is the difference between F-1 students and “Commuter Students” on F-3 visa?

F-3 visa is issued to “Commuter Students” from Canada and Mexico. They can attend school part-time or full-time, as long as they don’t reside in the United States.

Differences between F-1 and F-3 students:

  • They cannot reside in the United States.
  • F-3 students are subject to SEVIS requirements. However they cannot obtain a F-2 dependent visa for spouse and children, unlike F-1.
  • Unlike F-1, F-3 students are not allowed to work on campus. They are still eligible to apply for Curricular Practical Training (“CPT”) and Optional Practical Training (“OPT”), and may do so only after graduation.
  • F-3 students are given a certain date on their I-94, unlike the F-1 students who have a duration of stay on visa.
  • F-3 full-time students will be required to take at least 12 undergraduate credit hours and 9 graduate credit hours.
  • F-3 part-time will be required to take at least 6 undergraduate credit hours and 3 graduate credit hours.

The rest of the requirements and regulations are the same as for the F1.

Are F-1 students and F-2 dependents required to have medical or travel insurance?

F-1 students and F-2 dependents are not required to have medical or travel insurance. However, it is always good to show some form of assurance that the student and dependents would be able to afford healthcare costs and not become a public charge, in case a treatment maybe required in the United States. This maybe a concern for a Consulate Officers (CO) while issuing F-1 and F-2 visas.

Will I be considered out of status if I have not received my I-20 on time when changing my status from H1B to F-1 visa?

Hi, My H-1B expires on Dec 11. I plan to change my status to F-1 and have applied to a university. I might not receive the I-20 before Dec 11 and I will not be able to send the change of status application to the USCIS before Dec 11. Please let me know if it is ok if I send the application after Dec 11, 2012 with a difference of 2-3 days. Will I be considered out of status for those 2-3 days?

Your status expires when your I-94 expires. Once you are out of status, you cannot change status in the US, as technically you can’t change a status when you don’t have one. However, there are many cases where attorneys can submit affidavits and compelling reasons, to show that the 2-3 days out of status situation was unavoidable and beneficiary tried everything he/she could to be continuously in status. An immigration attorney will have tor review your case file, so a clear strategy can be laid out, and an adequate USCIS response be prepared. If you anticipate a longer delay, it would be an appropriate strategy to leave the US immediately, so that you don’t accrue any unlawful stay time. You can then apply for an F-1 visa at a Consulate in your home country.