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The New (And Dangerous) Chess Game: Change and Extension of Status

It is one of those assumptions the origins of which are lost in custom and rumor which are sadly corrected at the expense of a person’s disappointed expectations. I refer to the notion that a Change of Status from one non-immigrant status to another is a simple and routine affair.

While the concept of an application to change or extend status is easy to comprehend, the interpretation by the USCIS of the rules and regulations pertaining to these applications is not straightforward, and violation of the government’s policies can cause serious and negative consequences.

This year the USCIS has taken a strict approach in adjudicating applications for Extensions (EOS) and Change (COS) of Status. The government now, among other things, requires affirmative evidence that the applicant has not violated his/her prior non-immigrant status. Here is the typical situation in which a nonimmigrant can incur the wrath of the USCIS.

Change from Visitor (B-2) to Student (F-1) Status

The best example is the situation in which a person in visitor status (B-1/B-2) desires to change to student status (F-1) in order to attend school. A visitor in B-2 status cannot attend school but wishes to engage in academic study.

In this example, the visitor’s authorized period of stay is going to expire on April 15. On April 1, the visitor files a timely application to extend (EOS) the period of stay in B-2 for an additional period of time in order to complete the college matriculation process. On April 13, during the original authorized period of visitor status, the applicant files an application to change (COS) from a visitor (B-2) to a student (F-1). The applicant is obviously trying to create a bridge between visitor and student status. On July 15, while the COS (B-2 to F-1) application is pending, the government denies the EOS application that was filed on April 1. Then on August 15, the USCIS denies the application to change from visitor to student COS) on the basis that as a result of the denial of the application to extend visitor status (EOS) the applicant has failed to maintain status at the time the COS was adjudicated. The applicant is now without any status and is accumulating “time unlawfully present.”

The problem is that even though the extension application (EOS) was timely filed, it was denied before the USCIS adjudicated the change of status application (COS). While the cause of this unfortunate result was the delay in processing the COS to student status, the USCIS does not offer any “safe harbor” during the COS adjudication process.

Change from a Nonimmigrant Status Which Permits Study to F-1

The problem also arises when a person already in a nonimmigrant status that permits a study (J, L, E, H) files an application to Change of Status which is not adjudicated until the original non-immigrant status expires. Even though the non-immigrant filed a timely change of status application, if the original status expires by the time the USCIS is in a position to adjudicate the COS request, the applicant is deemed to have fallen out of status and is thus ineligible to COS to F-1. In that situation, the non-immigrant is out of status and begins to accumulate “unlawful presence” – even though the cause was the delay in adjudication by the USCIS. Again, no “safe harbor” is provided.

The Assistance of an Experienced Immigration Attorney is Highly Recommended

Under the above circumstances described in the prior paragraph, our office was able to assist the non-immigrant by applying for a third non-immigrant status so as to ensure that whenever the USCIS adjudicated the change to a student, our client would have always been in a proper non-immigrant status. This was a cumbersome and counterintuitive solution to the above anomaly, but it was actually suggested by the government in its Request for Evidence. As the title of this brief article suggests, an application to change to student status is akin to a chess game in which the opponent makes and interprets the rules.

Simply stated: A Change of Status application is no longer a simple and straightforward affair and like my homeroom teacher in High School often said, “A word to the wise is sufficient.”

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