June 16, 2017
Minsky, McCormick & Hallagan
Oftentimes, prospective students enter the U.S. on a B visitor visa to visit schools and decide they would like to stay in the U.S. to pursue a course of study. The inevitable question then arises: Should I change my status from a B visitor to an F-1 student within the U.S. or travel abroad to apply at a U.S. Consulate?
Applying for F-1 Visa at U.S. Consulate Abroad
To apply for an F-1 visa at a U.S. consulate abroad, you must first obtain a Form I-20 from your Designated School Official (DSO) that lists the start date of your educational program. You can then apply for an F-1 visa at the U.S. Embassy or Consulate in your home country. If approved, the U.S. Embassy or Consulate will issue the visa within a couple weeks. You can then enter the U.S. within 30 days prior to the start date of your educational program. This process is much quicker than applying for a change of status within the U.S.
The downside to applying in this manner is that you have to travel to your home country, which could be expensive, and your visa may be denied, preventing you from returning to the U.S. However, due to timing issues, we generally advise individuals to travel abroad and apply for an F-1 visa at a U.S. Embassy or Consulate abroad.
Applying for a Change of Status to F-1 within the U.S.
If you decide to change your status from a B to an F-1 from within the U.S., you must file a Form I-539 with U.S. Citizenship and Immigration Services (USCIS). USCIS generally takes about 5 months to make a decision on the Form I-539 application. Previously, as long as you filed the Form I-539 within 30 days of the start date of your educational program, you did not have to also file an extension of your B status if the application was pending beyond the expiration of your B status.
However, in late 2016, USCIS clarified that your underlying status must still be valid at the time they make a decision on your request to change to F-1 status. Therefore, more often than not, you will have to apply for your change to F-1 status along with an extension of your B status. The result is that you pay more filing fees in additional to waiting several months for a decision.
For most people it is easier to simply travel back to their home country to apply for the student visa. However, if your plans are flexible, you may consider trying to change status without departing the U.S. The pros and cons vary by each person’s situation. If you would like to discuss this matter in more detail to determine how best to proceed, please contact our office to schedule a consultation.