Changes in Student Visa Application Processes

In order for a foreign-national to come to the United States a visa is required. This may be an immigrant visa or a non-immigrant visa for a temporary stay. Although the children of certain non-immigrant visa holders (E-1/2, L-1, H-1 etc.) may attend school or college in the United States, they are generally only permitted to remain in the U.S. as dependents until they reach the age of 21.

There are essentially two types of (non-immigrant) Student Visas that will enable a citizen of a foreign country to enter the U.S. and attend school or college or a vocational program.

Subject to the few exceptions above, if a foreign-national wishes to come to the U.S. to study, they will need a student visa. To attend University or College, High School, Private Elementary School, Seminary, Conservatory or other academic institution (including a language training program) an F-Visa is required. Vocational or other recognized nonacademic institutions (other than a language training program) require an M-Visa.

Foreign-nationals who enter on a visitor visa (B-1/2 or Visa Waiver) may not study in the U.S. unless it is recreational study as part of a tourist visit. Students on a distance learning program that requires a period of time at the institution’s campus in the U.S. must also first obtain a student visa prior to entering the United States.

Student Acceptance at a SEVP Approved School

In order to apply for a Student Visa, the student will first need to apply to a SEVP approved school in the U.S. Once the SEVP School accepts the student’s enrollment, the student will be registered with SEVIS (Student Exchange Visitor Information System (ref.1 )) and must pay the SEVIS fee. The approved school will then issue a Form I-20. The student may then apply to a United States Consulate for the appropriate visa.

If the Student’s Spouse and/or children intend to live with the Student in the U.S., they must also enroll in SEVIS and obtain individual Form I-20’s from the SEVP approved school. They do not need to pay a fee.

Visa Application Process

The most common method to apply for a Student Visa is to do so through the U.S. Embassy or Consulate abroad using the Online Non-Immigrant Visa Application Process (DS-160). Once the interview is scheduled and the visa has been obtained, the Student (and any family members) may enter the U.S. as student and dependents.

Interviews are generally required although exceptions are often made for children aged 13 and younger and those aged 80 or older who do not generally require an interview.

Specific issues with Visa Interviews at U.S. Embassies and Consular Posts

"The Covid-19 Pandemic has led to significant delays in visa processing throughout the world. With few exceptions, many Embassies have not scheduled visa interviews since March 2020, except for urgent humanitarian and national interest cases. However, many Embassies have made exceptions for Student Visa Applicants and it is worth checking the specific Embassy website to obtain updated information.

At the time of writing (ref. 2 ), the following guidance provided by many Embassy websites:

Thank you for your patience as we work to resume visa services as soon as resources and U.S. and local regulations and conditions allow. We will resume routine visa services as soon as possible but are unable to provide a specific date at this time. If the service you need is not available, or if your travel plans are further in the future, keep checking this page as this is where we will share any updates. We can’t provide personalized answers by email, social media, or telephone about topics that are covered here.

U.S. travel restrictions remain in place. It is vital that you familiarize yourself with the current U.S. travel restrictions by reading any presidential proclamation in effect. We cannot assist you with interpreting the regulations beyond the guidance provided on this website.

If any Presidential Proclamation applies to you and you don’t qualify for an exception specifically listed in the proclamation, you can only travel to the U.S. if you obtain an individual national interest exception before you travel. This applies if you already have a valid visa or ESTA, or if you need to apply for a visa or ESTA. Keep reading for details.

If you need to apply for a U.S. visa, unavoidable backlogs caused by the impact of coronavirus (COVID-19) on our staffing and resources, and based on our undertaking health and safety measures in line with local and U.S. guidance mean that visa application procedures are subject to delay. We have not resumed routine visa services and appointment availability is extremely limited. Being exempt from the travel restrictions does not guarantee an expedited appointment and our appointment service provider will be best placed to provide any further details about future interview appointment availability."

Although many Embassies have prioritized Student Visa processing, a wait time listed as "999" calendar days indicates that the Consular Section is only providing service to emergency cases.

For Embassy specific information use the chart at:

https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html

For those who are present in the U.S. or who can travel to the U.S. with a visitor visa (B-1/2) (not Visa Waiver), it may be possible to apply for a change of status to F-1 Student Visa through United States Citizenship and Immigration Services (USCIS). However, processing times vary but can take 1 year or more. Current processing times are stated to be 9.5 to 12 months (ref. 3).

Special Considerations when filing for a change of status to F-1 in the US

In April 2017, the USCIS made it even more cumbersome to change status to F-1 full-time student status from within the United States. After implementing a revised policy in early 2017 that required a B-1/B-2 visitor to maintain continuous B-1/B-2 status while an application to change status to F-1 remains pending, USCIS had expanded this restrictive requirement to cover all nonimmigrants applying to change to F-1 status.

Prior Policy on F-1 Change-of-Status Applications

In order for the USCIS to approve a change-of-status (COS) application to F-1 from within the United States, there cannot be a gap of more than 30 days between the date the Applicant’s current status expires and the start date of the program of study, as noted in SEVIS. Due to backlogs within USCIS, F-1 COS applications often remain pending for extended periods. If the application does not receive a decision within 60 days, the system will change the SEVIS record automatically from active to terminated. Therefore, the university typically keeps deferring the start date into the future until the application is approved.

Historically, USCIS counted the 30-day gap period as the time between the expiration date of the current status and the initially requested program start date, rather than the deferred start date. So, even when a COS remained pending for months beyond an applicant’s I-94 expiration date, the USCIS still could approve the application as long as the program start date initially requested was within the requisite 30-day period.

Change in Policy for B-1/B-2 Applicants

USCIS officially altered course for those in B-1/B-2 status applying for a COS to F-1. As of March 2017, a person in B-1/B-2 status was required to maintain valid status until within 30 days of the actual (i.e. deferred) program start date, as opposed to the requested start date, since B-1/B-2 visitors cannot start attending school until the change of status to F-1 is approved. This means that, if a COS application remains pending for months, the applicant must continue to file B-1/B-2 extensions until the F-1 is approved in order to cover the gap.

“Cover-the-Gap” Policy Applied to All Nonimmigrants Changing to F-1 Status

USCIS subsequently expanded this policy to cover all nonimmigrants changing status to F-1 from within the U.S., even though applicants in most such nonimmigrant statuses have the option of starting to attend school based on the initial program start date as noted on the I-20 form. Reportedly, the USCIS had been applying this policy unofficially with regard to all nonimmigrant statuses since March 2017. This new policy required that an Applicant for a change of status must maintain valid nonimmigrant status from the point when the COS application is filed until at least 30 days before the actual or deferred start date, whichever is later.

By way of a practical example:

John is the child of an E-2 Visa holder. On June 22, 2020, John celebrated his 21st birthday and ‘aged out’. As an adult aged 21 or over, John can no longer be classed as an E-2 dependent. He was enrolled in a College Course within the U.S. In order to remain lawfully present in the U.S., John had to file an Application to change status from E-2 to F-1. However, under the above policy, he would have to maintain his non-immigrant status until at least 30 days prior to the start of his approved F-1 course. Since John was unable to maintain his E-2 status, he would have had to file an Application to change status to B-2 Visitor and then file a separate Application to change from B-2 Visitor to F-1 Student status. Since Applications to change status to B-2 Visitor status are usually in increments of 6 months, John would have to file subsequent Applications to extend his B2 status, while the F-1 Application remains pending.

July 20, 2021 Policy Alert (ref. 4)

On July 20, 2021 U.S. Citizenship and Immigration Services announced new policy guidance that eliminates the need for individuals who have applied for a change of status (COS) to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 COS application is pending.

Under the previous policy, outlined above, applicants needed to maintain status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status, which required them to file extensions, or an initial COS and subsequent extensions ensuring that they would not have a “gap” in status.

The new policy states that to prevent a “gap” in status, USCIS will grant the change of status to F-1 effective the day they approve an applicant’s I-539 Application to Extend/Change Non-Immigrant Status. If USCIS approves an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time. An example of a violation would be engaging in employment, including on-campus employment, more than 30 days before the program start date as listed on their Form I-20.

The new policy is intended to reduce workloads and costs for both the applicants and USCIS. USCIS is in the process of revising the Form I-539 instructions to reflect these changes.

Using the example above, if John were to ‘age out’ after July 20, 2021, he would have to file an Application to Change Status from E-2 to F-1 Student, and could remain in the U.S. while the Application remains pending. However, until the Application is approved, John may not attend classes or engage in employment.

References:

1. https://www.ice.gov/sevis
2. July 22, 2021
3. https://egov.uscis.gov/processing-times
4. https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210720-StudentsChangeOfStatus.pdf

ABOUT THE AUTHOR: Anthony Korda, Esq., is the owner of The Korda Law Firm with offices located in Naples, Florida; Beverly Hills, California, and a presence in London. He is admitted to the Bars of California and DC and is a Barrister of the Supreme Court of England & Wales, where he is authorized to accept Direct Access cases.