Over the last several months we began receiving reports of denials of I-539 change of status applications from B-2 to F-1 despite the I-539 being timely filed. What was happening is USCIS delays required the school's DSO to defer the program start date in SEVIS prior to adjudication of the change of status. In these cases the deferred start date for classes did not match the end of the B-2 status or the date USCIS adjudicated the application to change status. The result of which was the I-539 application to change status from B to F was denied.
This is a departure from prior practice which permitted the change of status as long as the I-539 was timely filed. 'Timely filed' means the application was filed within the validity dates of the B-2 I-94 authorized stay .
Under 8 CFR §214.2(f)(5)(i), "[a]n F-1 student may be admitted for a period up to 30 days before the ... program start date listed on Form I-20." USCIS is interpreting 8 CFR §248.1(b), to require the applicant to maintain B-2 status until 30 days before the start date, or the change of status will be denied.
The California Service Center, USCIS Service Center Operations (SCOPS), and USCIS Headquarters confirmed the practice of denying these applications is authorized by the regulations, citing 8 CFR §248.1(b) and §214.2(f)(5)(i), and referencing the instructions to Form I-539 which state:
A change of status may be granted for a period up to 30 days before the report date or start date of the course of study listed on Form I-20. You must maintain your current, or other, nonimmigrant status up to 30 days before the report date or start date of the course of study listed on Form I-20 or your requested change of status may not be granted.
USCIS went on to state that in such situations, in order to remain eligible for a change to F-1 status, the individual must file an I-539 B-2 extension application to bridge the gap in time between the current nonimmigrant status expiration date and the 30-day period before the new F-1 program start date.
While we don't interpret the regulations to mandate a denial without a bridge petition. We point mixed result we have been told by applicants: one person reported a bridge petition rejected as "unnecessary," while another reported a denial of the change of status to F-1, while a B visitor bridge petition was pending.
We generally advise clients it is better to apply for the F-1 student visa at a US embassy or consulate in their home country abroad. Where we do file B-2 to F-1 change of status applications we carefully time their I-20 start date with current USCIS processing times in mind. Further, when necessary, we recommend filing a B-2 bridge application despite the mixed results from bridge application filings.