What I always tell my clients is this: if you intend to study, your best option is to arrive in the US with an F1 visa. If you are in the United States with a B2 visa, you should consider leaving the US and applying for an F-1 visa in your home country.

What does “pre-established intention to study” mean?

The B-2 visitor visa is intended only for non-immigrants who wish to temporarily travel to the United States for leisure, tourism, or medical treatment. While this may include a short recreational course, it cannot include study of a course that will count for credit toward a degree.

Unfortunately, many foreigners who already have a B-2 visa in their passport assume they can use it to enter the United States even when the intention is to study. The common assumption is that they can simply submit a change of status request once accepted into an academic program. This mentality is generally referred to as a pre-established intention to study.

This pre-established intention conflicts with the purpose of the B-2 visa. If the USCIS has reason to believe that you had a pre-established intention to study when you used your B-2 visa to enter the United States, your request for status change will likely be denied.

Only you know what your true intention was when you entered the United States. If you had a pre-established intention to study, you should avoid the status change request and travel home to apply for the F-1 visa at the US consulate abroad with a new DS-160 application.

If you did not have a pre-established intention to study, you will need to document the circumstances that led to your decision to pursue an academic program after entering the country. You may also have to write a sworn statement explaining the circumstances. Remember that the pre-established intention is harder to demonstrate if you contacted your academic institution soon after your arrival.

Applying for status change: B-2 to F-1

If you believe you will be able to demonstrate that your intention to study arose only after you entered the US, here is how to apply for a status change.

You must submit Form I-539 to extend/change non-immigrant status to the USCIS by mail. The I-539 application must include documents that prove you are eligible for F-1 status. This documentation should include, but is not limited to, the following:

• Form I-20 issued by the academic institution you will attend;
• Evidence of liquid assets to cover your estimated education and living expenses, and;
• Proof that you have significant ties to your home country and will return there as soon as you complete the academic program.

When preparing the I-539 application, consider the fact that you must maintain your B-2 visitor status at the time of application. You may need to submit another application to extend your stay with a B-2 visa. The USCIS will also research evidence of your intention when you entered the United States to ensure that it was consistent with the purpose of the B-2 visa. Include any evidence you have to counter the assumption of a pre-established intention.

Applying for a student visa outside the United States

If you are concerned about not being able to successfully submit a status change request or if your status change request is denied, you can leave the United States and apply for your F-1 visa in your home country.

Applying outside the United States has its advantages. You do not have to worry about the pre-established intention, and the application process is usually faster than USCIS processing times for status change.

WHAT IF MY STATUS CHANGE REQUEST IS DENIED?

If your change of status is denied, you will receive a letter from USCIS informing you that you must leave the United States. There is no way to appeal the denial of a Change of Status to F-1 student status. However, an attorney can help you request that your application be reconsidered. The attorney will need to argue that USCIS incorrectly applied the law to the facts in your original application – this is not an easy argument to make unless an obvious error has occurred.

If you decide to apply for a student visa again abroad, the main question will be: can you fix the underlying problem that led to the first denial? If the problem has to do with your basic eligibility, such as having enough money to cover your stay or whether you will return home afterward, you may be able to fix it.

LONG-TERM CONSEQUENCES IF YOUR CHANGE OF STATUS REQUEST IS DENIED

Having a visa or Change of Status request denied can have long-term consequences for your visits or eventual immigration to the United States. The US government will keep a record of your visa denial. If there was fraud or they found you inadmissible for some other reason, that denial may affect your visa applications in the future.

At a minimum, having a request denied will mean that the US government will seriously review any other immigration request you make. Immigration authorities may consider that denial when making other visa decisions for you, no matter how long ago the denial occurred. If you later try to hide the denial and get caught, it will likely destroy your chances of getting a visa to the US or other immigration benefit.

You should always consult an immigration attorney before submitting any requests to USCIS.

Ingrid Perez is an immigration attorney at IBP Immigration Law located in Orlando, Florida. Schedule your consultation here.