How to change the status if you come to the US and want to stay for a long time
Getting a visa in the United States is quite difficult. Getting the type of visa you want is even more difficult. For applicants from the CIS countries and some countries in Eastern Europe, the positive outcome of the interview at the embassy is a real achievement. The most popular visa is B1 / B2, which serves for tourist purposes and business trips. The level of requests for a so-called transit visa is also high. And another of the top-most popular visas is a study visa for J-1 exchange programs. Each of the above types of visas has a time frame that limits one-time stay in the United States. The standard maximum visit period for a tour is 6 months (if you didn’t like the officer at the border, even less). In the case of a J-1 visa, the two-year ban on entry into the United States after the end of the program may also work. But neither the first, nor the second, nor any other circumstance in a row does not prevent visitors from staying in the USA for a much longer period. How? Through the change of status.
According to official statistics on the US Immigration Service website, the number of requests for a shift or extension of the current status practically does not change from year to year. On average, USCIS receives about 200 000 of such applications annually. About 80% of them are approved. It is not surprising that the topic of status change does not lose popularity and always raises many questions.
What status can be obtained by arriving in the USA, for example, with a B1 / B2 visa? The answer is student status, which will allow you to stay in the country while you are studying at an ESL school or college. How long can this status be extended? Officially, before 8 years. But even here there are exceptions.
If you competently build your curriculum, starting with the simplest language school, and eventually go to college, you can study, study and learn ... True, this process is far from cheap, and, in fact, does not lead anywhere. But more on that below.
Changing student status is not so difficult. The main thing is to prove to the Immigration Service that you only need a status for a while due to changed circumstances.
Most often, such a reason applicants call the desire to learn English. The applicant needs to state such a desire in a motivational letter, and this letter always looks fairly standard: ... Arrived / came to the United States to rest, and how I became / began to communicate - I understood / understood that there were practically no language skills. And English is simply vital for my further study / career / travel (underline the necessary). Naturally, one letter of motivation is indispensable.
It is very important to prove to an immigration officer who will consider your case, that you have something to lose in your own country and there is room to return to.
These can be real estate inquiries, availability of business and savings. Or a letter from an employer who promises to keep your job for the entire period of study. It is also important to provide proof that you have a permanent residence in your home country.
These may be bills to a specified address in your name, a certificate from the housing department, a lease (active, where you can see that you continue to pay for housing, even while temporarily staying in the US), a certificate of ownership of an apartment or house. And, most importantly, what you need to demonstrate is financial viability. Student status (F-1) does not entitle you to formal employment in the United States, so you should have an amount in your account that covers expenses for at least a year of study and residence in America.
Changing status through an ESL school, you must show at least $ 12 000 on your account. If there is no such money, the sponsor can be a sponsor who will need to provide financial documents about the availability of the required amount, as well as fill out an affidavit, a guarantee form, on providing financial support to a prospective student.
How much time does the whole process of status change take? The short answer will be: a lot. Or much more than it was two years ago.
Attorney Claudette Delasern, whose office is located in the heart of Manhattan, has been helping her clients change their status for many years. Most often, her assistance is required if the case for some reason turned out to be more difficult than the applicant had originally intended:
“For example, the Immigration Service requested additional evidence that is difficult to provide. Or the applicant was refused and wants to challenge him, ”says the lawyer. In 2017, Claudette was faced with the fact that letters from the Immigration Service demanding to provide additional evidence (ang Request for Evidence - auth.) Became more difficult, and almost all applicants began to receive them. The main reason was the 6 rule of April 2017, which obliges all those who want to change their status in the United States to maintain their current status while the case is being considered by USCIS (United States Citizenship and Immigration Services - auth.)
“In fact, maintaining the current status is not an innovation. Before the recommendation came out, this rule was already in effect, says Delasern's lawyer. - If you are waiting for any status, you need to keep your current status active. The difference is that previously the Immigration Service was not so strict. There was such a thing as being on hold.
That is, if your application for a status change is pending, you are allowed to stay and wait.
Such an expectation was never safe on 100%, because if something unexpected happened (for example, your application for a status change was rejected), you would not have any legal status whatsoever. But now they (Immigration Service - auth.) Are very strict about this. If you change your status, you must also maintain current status until approval of your application. But if your status cannot be renewed (for example, J-1), then you will need to submit another application for status change. This time to get temporary status. And, it turns out, B-2 is the only option in this case, ”Claudette describes the situation.
Those applicants whose status change case was pending at the time when the new-old recommendation appeared on the USCIS website received a request to urgently extend the status, and also explain why it was not done on time. It was necessary to create such an explanation correctly, with an indication of a clear and understandable reason. In such cases, the help of a lawyer was required. And maintaining the current status is far from the only thing that has become an urgent need for those who want to get student status in the United States.
“If you look at the site of the Immigration Service, there is a sufficiently large number of documents that need to be attached to the application for changing status. Two years ago, USCIS did not approve cases with a full set of documents, without evidence of links with the homeland, for example. Therefore, it took less time. It was possible to get a decision on your application in six months, or even less. But since last year, cases of changing status in USCIS have become much stricter.
In fact, nothing new was added to the process, but now it’s impossible to get rid of simple school documents and the I-539 form. The Immigration Service carefully processes each application and draws attention to each document. That is why the consideration of cases on status change now takes more time, from 9 months to a year or even more, ”explains the lawyer.
Who can change the status in the US? Everyone who came to the country with a non-immigrant visa, except for a type D visa (members of foreign ship or flight crews), a transit visa C and a bride / groom's visa K. You cannot apply for a change of status and those who came to the United States without a visa ( the so-called ESTA or VWP countries whose citizens are allowed visa-free entry to the United States for up to 90 days).
You can not leave
J-1 and a two-year restriction on entry into the United States after the end of the program to change the status is not a hindrance. According to Claudette, this rule only works if immediately after the program the applicant is going to apply for a green card. “J-1 is a non-immigrant visa. This means that the holder of such a visa does not intend to stay in the United States. In the same way as in the case with the status of F-1. Therefore, changing one non-immigration status to another, the applicant does not violate the rule of two years. It’s another thing if the contract with the sponsor who paid for the trip to the USA clearly stipulates the return of the participant to the program Then this scrupulous moment will have to be solved with a sponsor, and not with the US Immigration Service, ”the lawyer says.
Further, if the former J-1 visa holder with a two-year rule applies for immigration status (for example, a green card through marriage with a US resident or employment), this rule will be activated and you will have to return home for two years.
But sometimes the restriction can be challenged due to special circumstances. For example, because of the special medical indications of an American husband or wife who needs your constant presence and help.
Pregnancy of the American spouse can become such a circumstance. But the pretender's pregnancy on the green card is no reason to cancel the two-year ban on entry.
“It may help if the home country of the J-1 visa holder does not object to the fact that the person does not return home. There are countries that easily agree to meet the applicant, but there are those that are categorically opposed, ”says Delasserna.
In any case, according to the specialist, you can always try to challenge the restriction, because, in fact, you cannot forbid someone to do something after the program. Even if it is written that you must return home, you can fight for the right to stay.
What about those who come on a non-immigrant visa with their family members and want to change their status to a student one? In essence, the same rules work. One applicant is applied for status change, the rest are as (for lack of a better word) dependents. It is important to remember that for each of those who are indicated in the documents as a dependent, you will need to show an additional amount in the bank account of the applicant or his sponsor. For the rest, there will be no extra costs.
If the applicant's F-1 status is approved, all family members whose names are indicated in the status change documents will be assigned the F-2 status to the “trailer”. Most often, if the documents are in order and there is evidence of close ties with the homeland, then having a family in the application for a status change has little effect on the decision.
“If you have prepared a complete package of necessary documents, which includes proof of the availability of real estate, business and stable income in your native country, then getting an F-status for an applicant with a family is just as easy as being served alone. Of course, there is a subjective point here: much will depend on the officer who is considering the case. But the simple fact that you are applying with someone from a family member is not a reason to refuse, ”explains Claudette Delaserna.
This is a terrible word "failure." Despite the rainbow statistics with 80% of approved cases on status change, the remaining 20% with negative outcomes is also a considerable figure. Why is every fifth applicant for a change of status waiting for "no" from the US Immigration Service? Most often, the cause becomes a “weak” set of documents from the home country.
When there is no business, no stable work, no real estate. Among other reasons, mistakes are made by both the school that provides the standard package of documents for applicants, and ... the Immigration Service itself. In this situation, there is a good chance to challenge the decision. Or rather, not to dispute, but to reopen the closed after the refusal case, providing new documents, which should convince USCIS to change the decision.
“You can make a formal explanation of what happened. If it was the school’s fault, then it would take a lot of time, at least a year, to deal with an open case after a refusal, says the lawyer, “If the Immigration Service itself made a mistake, for example, without seeing an important document that was nevertheless , he was sent - that case will be considered very quickly, within a couple of months. ”
If the applicant was refused, because important documents were not delivered on time by mail, the chances of proving something and getting a review of the case are there, but they are small.
“Perhaps you have the number of the postal item for which you were tracking the envelope. Or an affidavit from the postal service confirming the loss of a letter - then you can fight. But, more often than not, justice is difficult in this case, ”says Delaserna.
The good news is that you can open a business after a refusal an infinite number of times. Bad is very expensive.
You will need to pay $ 675 to the Immigration Service to reopen the case. And it is important not to forget that while you are working on your student status, the temporary status will also need to be maintained. The extension every 6 months is another $ 370. Whatever happens, for whose fault you are not wasting (even if it will be three times the fault of the service itself), it is important to understand that USCIS does not return money. Never.
Remember, at the beginning of the article there was a warning that staying too long in the US for F-1 status is a road to nowhere? In fact, this warning concerns, first of all, those who extended their student status for several years while studying in a regular language school.
In the future, if the holder of this status will be able to find a job in America, this can be a problem. You will have to explain in great detail to the Immigration Service, which has “kept” you in a simple language school for so long.
And vague or flimsy responses may jeopardize the receipt of such a desired green card. Fragmented, uneven study, when a student moved from school to college and back, can also be an obstacle to formal employment.
In any case, if there are plans to stay in the United States and eventually get a work visa or a green card, it’s better not to stay out on student status for a long time.
Student status and employment opportunities
Probably the most common question from those who are interested in student status in the United States: can one officially work as an American student? Yes, you can, but only on the campus of the school or college where you are a student. And only 20 hours per week.
It sounds like a good opportunity, but in fact it is very, very difficult to find such a side job. And certainly it is impossible to get a job from the first days of study. The competition for the opportunity to officially work among foreign students is very high, because along with the legal earnings comes SSN (social security number - author), insurance and the ability to at least partially (and sometimes completely) cover the costs of study.
If you don’t find work on campus, and you really need work, you can try to get permission to work outside of school.
To do this, according to a lawyer, will be difficult. It will be necessary to prove to the Immigration Service that you are no longer able to pay for training due to unforeseen circumstances.
“If in the middle of the semester, after several months of training, an unexpected situation happened - for example, something happened to the sponsor, and he can no longer pay for you. Maybe the person who sponsored you is dead. Or lost a business. Then you can apply to the immigration service with a request to allow you to work outside the 20 campus hours a week so that you can pay for your studies, the lawyer explains. - The site has an address to which you can send a letter asking for permission to work off campus. As well as evidence supporting your words. This could be a sponsor’s death certificate or a bankruptcy document. ”
According to Delasterna, consideration of such petitions takes a very long time and it is very difficult to obtain such permission. The review will take at least several months. And this can also cause your request to be rejected. After all, while the Immigration Service is working on your application, the semester will end and you, according to the logic of USCIS, will be able to return home.
All in your hands
For those who nevertheless decided to change the status, despite the duration and high cost of the process, the lawyer Delasserna gives some advice. First, always maintain legal status until you get approval for an F-1 application and become a student. Since a one-time extension is made only for 6 months, you should understand that, after this period expires, the status will need to be renewed again.
“Even if you did not receive any response to your request for the renewal of the status of B-2, you yourself are responsible for the deadlines. And before the expiration of the first 6 months, must apply for a renewal. Of course, this is an additional expense. But it is still cheaper than reopening the case after refusal, ”explains the lawyer.
You can check at what stage your application for a status change is considered at the official Online US Immigration. It is not updated regularly, and sometimes you can get a notification in the mail before new information appears online.
If you need to get the latest information on the process urgently, you can try to make a request on the same site and ask your question. But Claudette Delaserna does not advise calling USCIS: you will not get through to the officer who is considering your case, and the Immigration Service answering the phone calls are not experts on your question and may not know all the nuances.
“When you call the Immigration Service, especially the number that starts with 800 numbers, you will not get through to the officer, but to the person who answers the phone. In essence, to the secretary. The job of this person is solely to answer calls. And most likely this person will not be able to provide you with complete and reliable information (especially specific) in your case. Sometimes such calls can only confuse and make you make a mistake. Of course, not consciously. But to understand this nuance is still worth it, ”says the lawyer.
And the last advice from a lawyer: remember what you said and what information you provided to the embassy when you applied for a visa. If the documents for the change of status information will diverge, it can greatly harm the process, and even completely lead to a refusal to provide you with student status.
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