Many people from the Caribbean go to the US on a visitor’s visa (a B1/B2 non-immigrant visa) and, for one reason or another, they do not return home.
They then become “visa overstays”.
These people are often given information that because they legally entered the US on a multiple entry visa, that is a visa that initially had been valid for several years, they can change their status by submitting an application to the United States Citizen and Immigration Service (USCIS) without more, to change status or adjust status.
This is an incorrect view of US immigration law.
The law states that anyone who has come to the US on a visitor’s visa and remains over the period stipulated, has breached the terms of the visa. Such a person is now subject to expulsion from the country, unless they have a qualifying US citizen spouse or US citizen son/daughter over 21 years old.
So, it is patently incorrect for such a visa holder to be advised that they can simply submit documents to change their status without being in one of these two categories.
What are the bases of a Change Status
Regardless of the category that you came to the US in, the law allows that you can change your eligible non-immigrant status.
However, the first basis of such an application is that the period that you have been admitted to remain in the USA has not expired, that is the date noted on your I-94 (proof of visitor status and travel history that is available on the I-94 website) that you are expected to depart the US.
Additionally, you must not have violated the conditions of your status, such as working when the visa does not allow it or going to school before being approved.
Another basic eligibility feature is that you have not committed and/or have been convicted of any criminal activity in the US.
USCIS specifically advises that even though you have submitted an application for a change of status, you must not assume that the change of status has been approved until you have the actual approval letter from USCIS.
Critically, you should not change your activity in the US until you have been approved, for example, you should not begin working or begin going to school.
When should a Change of Status application be submitted?
Since USCIS acts on their own timelines, it is important that the moment you think you need to change to another non-immigrant visa status, you complete and submit the application.
It makes no sense to apply with the assertion that your application is “urgent”, because you were just offered a job, or you want to go from one type of student category to another et cetera.
It’s crucial to recognise that if USCIS denies your application, you must leave the US when your current status expires.
So, you can see the dilemma if you submitted the application later than sooner.
Change of Status from visitor to student
Many people come to US as visitors and while there, they investigate the possibility of enrolling in a school and might well even be accepted. So, this would mean that you are changing your status from a visitor (B-1/B-2) to, for example, a student (such as the F category for academic students or the M category for vocational students).
However, it is crucial to emphasise that such a change of status applicant must not enrol in the institution, even if they are accepted. Furthermore, you should certainly not begin to attend classes, not even if they are online, part time or evening only, or even worse, you should not accept and begin any employment related to the student status.
Immigration law is clear. Where a person enrols in any academic or vocational programme or begins attending related classes when they are still in the visitor (B1/B2) category, that is a violation of their specific visa and will result in disqualification, denial and revocation of the current status.
The USCIS recommendation is that if there is no decision on the change of status application to a student status, at least 15 days before the programme start date on your Form I-20, you can contact the Designated School Officer (DSO) at your new school.
Hopefully, you will still be in status and you must therefore defer your start of the programme (work, study et cetera), and wait to be approved by USCIS.
The trick here, literally, is that one must remain in status in order to remain eligible to change your status. For certain changes, it is possible that you will have to file an application to request that your current status be extended. Of course, fees are needed for this and the relevant documentation.
Vocation Student (M) Change of Status to Academic Student (F)
Students in the non-immigrant visa status, M, are not allowed to change that status to F while being in the US. So, if you have found a school that you want to attend to study for a Bachelors in Mathematics, for example, that is the category of F-1.
The steps are different and require attention to make sure you do not breach your visa status.
Firstly, you will need to leave the US to be accepted in this new category. You must also apply to one of the stipulated certified learning institutions and must receive a Form I-20 from that specific institution that details acceptance information.
The I-20 is generated by the institution, and it gives important details about the institution, the programme, the cost for the entire programme, the location, the designated persons to be contacted at the institution, the period of time for completion, and, of course, it has identification details about you.
Having received this I-20, you will then need to apply for a visa at a US Embassy in your country. It is important to note that the I-20 does not mean that the consular officer is mandated to approve the F-1 visa at the interview.
The consular officer must still be convinced that you will return to your country after your education is complete and also that you are able to cover all financial needs for the period of study out of personal funds or funds from someone as well as about your long-term plans.
The proof of availability of these funds is to be taken to the interview, along with all other evidence, even though the consular officer might not ask to see any document.
Some consular officers do not look at the documents because they say that the documents could be fraudulent or obtained by fraud. So you must literally convince the consular officer in a few minutes that you are not seeking a visa to merely not return to your country.
Academic Student (F) Change of Status to Employee with a First Degree or More (H-1B)
For persons already in F-1 status, and present in the USA, you might get job opportunities that would need a change of status to the H-1B category, where it is required that you have at least a Bachelor’s degree. The prospective employer can submit the relevant application to USCIS. The application belongs to the prospective employer not to the student hoping to change status to employee. The H-1B category has several strictures that must be complied with but that is for another article.
*This article does not constitute legal advice and is intended for informational purposes only.
Nadine C Atkinson-Flowers is admitted to practice in the USA and Jamaica. Her US practice is in the area of immigration, while her Jamaican practice areas include immigration and general legal consultancy. She has been an attorney for over 15 years in Jamaica and has written articles for several legal publications. She is passionate about access to justice issues and volunteers with several legal, business, children and community service organisations in Jamaica and the US. She can be contacted at [email protected]
