Litwin & Smith, A Law Corporation
Case Status

Litwin & Smith Nationwide FY 2021 H-1B Cap Petition Filing Ends June 30, 2020

IMPORTANT ANNOUNCEMENT: Litwin & Smith provides nationwide H-1B Cap Petition preparation for H1B Cap registrations selected in the H1B Cap lottery. The 90-day filing window for Employers to submit their H1B Cap Petitions end June 30. Don’t delay. File Your Petitions Now. The experienced, trusted law firm of Litwin & Smith will assist you through every step of the petition filing process. Contact Litwin & Smith to receive H-1B Petition assistance.

B-1/B2 to F-1 Change of Status Denials

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.

No Comments

Leave a comment
Comment Information

Santa Clara Office 5201 Great America Parkway, Suite 320 Santa Clara, CA 95054 Toll Free: 888-344-0892 Fax: 650-588-4302 Santa Clara Law Office Map

South San Francisco Office 1435 Huntington Ave, Suite 336 South San Francisco, CA 94080 Toll Free: 888-344-0892 Fax: 650-588-4302 South San Francisco Law Office Map