The Immigration and Nationality Act prohibits change to or from certain nonimmigrant categories. Some aliens are in a classifications that do not allow for a change of status in the United States (for example, J-1 is subject to the two-year home rule and is ineligible to change of status in the U.S.).
The Immigration and Nationality Act prohibits change to or from certain non-immigrant categories. Some aliens are in a classifications that does not allow for a change of status in the United States (for example, J-1 is subject to the two-year home rule and is ineligible to change of status in the U.S.).
An applicant for change of status must be "in status" at the time of application. If an applicant has failed to maintain the terms and conditions of his or her nonimmigrant status, then a change of status application cannot be approved. Please note that the primary visa holder (such as F-1) must be in valid status before the dependent (F-2) can change status. Your current nonimmigrant status may not expire more than 30 days before the report date of your new I-20.
USCIS adjudicators report that the most common reason for denial is that the forms are not complete and/or the documentation is inadequate. You must carefully check over your application before submission. Some other common errors include:
- The application is not signed in blue ink
- The required fee is not attached, is not in the proper amount, or the check is not signed or properly completed
- Outdated or incorrect application forms are used
USCIS officials have the right to exercise discretion in applications for change of status. The following are possible areas of inquiry by USCIS officials:
- Financial ability
An F-1 applicant is required to show sufficient funding to cover tuition and living expenses. You must prove to USCIS that you will not need to resort to unauthorized employment in order to support yourself in the U.S. and that you will not become a public charge.
- Preconceived intent
If USCIS believes that you entered the United States with the intent of changing your status, the application for change of status can be denied. This denial is based on the theory that you tried to circumvent the normal visa process by entering on one visa and then changing to another status after entry.
USCIS takes several things into account when considering whether an applicant may have had a preconceived intent. These include the time between entry in one status and the application to change status, and when and how quickly the applicant began taking steps towards obtaining the new status.
- Immigration history
It is possible that the USCIS adjudicator will inquire about your nonimmigrant history. The adjudicator is looking to see if there were periods of unauthorized employment in your history, if you are currently maintaining status, and if you are restricted from using the new category based on having used the category before.
- Nonimmigrant intent
Linked to the immigration history inquiry is an inquiry as to whether you continue to have temporary "nonimmigrant" intent. If the USCIS believes that the application for change of status is an attempt to prolong your stay in the U.S. indefinitely, USCIS may deny the change of status application on the theory that the alien "abandoned" his or her nonimmigrant intent. USCIS will take into account any steps towards applying for permanent residency in determining whether you continue to have nonimmigrant intent.
- Status of a nonimmigrant while an application for change of status is pending
Generally, nonimmigrants who have filed a timely application for change of status can remain in the United States while their application is being adjudicated by USCIS. This assumes that the person was in valid nonimmigrant status when he or she filed the application.
Applicants for a change of status from F-2 to F-1 status are not permitted to begin a full course of study until their application has been approved by the USCIS. Specifically, "an F-2 spouse may not engage in a full course of study, but may engage in study at an SEVP-certified school in the United States as long as they are enrolled in less than a full course of study. The F-2 spouse may still engage in study that is merely avocational or recreational in nature. To engage in a full course of study, an F-2 spouse must apply for and be granted F-1, M-1, or J-1 status." Also, "an F-2 child may engage in study at an SEVP-certified school in the United States as long as they are enrolled in less than a full course of study at the postsecondary level. An F-2 child may also engage in recreational or avocational study. To study full-time at the post-secondary level, the child must apply for and be granted F-1, M-1, or J-1 status."
Therefore, an individual in F-2 status may take no more than 3 courses per session in the IELP, no more than 11 credits in an undergraduate program, and no more than eight credits in a graduate program.