How to change the status if you come to the US and want to stay for a long time
Getting a visa to 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 of Eastern Europe, the positive outcome of the interview at the embassy is a real achievement. The most popular is the B1 / B2 visa, which serves for tourist purposes and business trips. There is also a high level of requests for a so-called transit visa. And another of the top popular visas is the J-1 student exchange visa. Each of the above types of visas has time frames that limit a single stay in the United States. The standard maximum duration of a visit on a tour visa is 6 months (if the officer at the border does not like you for some reason, even less). In the case of a J-1 visa, the rule of a two-year travel ban after the end of the program may also work. But neither the first, nor the second, nor any other circumstance prevents the visitors from staying in the United States for a much longer period. How? Through a change in 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 it, ”says the lawyer. In 2017, Claudette faced the fact that letters from the Immigration Service demanding additional evidence (ang Request for Evidence - author) became more difficult, and almost all applicants began to receive them. The main reason was the rule of April 6, 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 was issued, this rule was already in force, says Delacerna's lawyer. - If you are waiting for any status, you need to keep the current status active. The difference is that the Immigration Service was not so strict in the past. 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.
This waiting was never 100% safe, because if something unexpected happened (for example, your application for a change in status was rejected), you would have no legal status at all. But now they (the Immigration Service - ed.) Are very strict about this. If you change status, you must also maintain the current status until your application is approved. But if your status cannot be renewed (for example, J-1), then you will need to apply for another status change. This time to get temporary status. And it turns out that B-2 is the only option in this case, ”Claudette describes the situation.
Those applicants whose status change case was pending at the moment when the new-old recommendation appeared on the USCIS website, received a request to urgently renew the status, and even explain why this was not done in time. It was necessary to draw up such an explanation competently, indicating 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 wishing to obtain student status in the United States.
“If you look at the website of the Immigration Service, there is a fairly large number of documents that need to be attached to the application for a change of status. Two years ago, USCIS did not approve cases with a complete set of documents, without proof of ties 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, USCIS has become much stricter regarding cases of status change.
In fact, nothing new was added to the process, but now it is impossible to get rid of simple documents from the school and the I-539 form. The Immigration Service carefully processes each application and pays attention to each document. That is why it now takes more time to consider cases on changing the status, from 9 months to a year or even more, ”the lawyer explains.
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 entering the United States after the end of the program for changing status is not a hindrance. According to Claudette, this rule only works if the applicant is going to apply for a green card right after the program. “J-1 is a nonimmigrant visa. This means that the holder of such a visa has no intention of staying to live in the United States. In the same way as in the case of the F-1 status. Therefore, by changing one nonimmigrant status to another, the applicant does not break the two-year rule. It's another matter if the contract with the sponsor who paid for the trip to the United States clearly stipulates the return of the program participant home. Then this scrupulous moment will have to be solved with the sponsor, and not with the US Immigration Service, ”the lawyer assures.
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 can help if the home country of the J-1 visa holder doesn't mind that the person doesn't return home. There are countries that easily agree to meet the applicant halfway, and there are those that are categorically against, ”says Delaserna.
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 F-1 applicant status is approved, all family members, whose names were indicated on the documents for the change of status, “trailer” will receive F-2 status. Most often, if the documents are in order and there is evidence of close ties with the homeland, then the presence of a family in the application for a change of status has little effect on the decision.
“If you have prepared a complete package of necessary documents, which includes proof of real estate, business and stable income in your home country, then getting F-status for an applicant with a family is no more difficult than for one who applies alone. Of course, there is a subjective point here: a lot will depend on the officer who is considering the case. But the simple fact that you are applying with a family member is not a reason to refuse, ”explains Claudette Delacerna.
This is the terrible word "rejection". Despite the rosy statistics with 80% of approved status change cases, the remaining 20% of cases with a negative outcome is also a significant figure. Why is every fifth applicant waiting for a “no” from the USCIS? Most often, the reason is a “weak” package 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 an official explanation of what happened. If it was the school's fault, then it will take a very long time to consider the case opened after the refusal, at least a year, - says the lawyer, - In case the Immigration Service itself made a mistake - for example, not seeing an important document, which was, nevertheless , they were 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 mailing number that you tracked the envelope. Or an affidavit from the postal service confirming the loss of the letter - then you can fight. But, more often than not, it is difficult to achieve justice 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 has the opportunity to find a job in America, this can become a problem. You will have to explain in great detail to the Immigration Service what “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 study, an unforeseen situation occurs - for example, something happened to the sponsor and he can no longer pay for you. Maybe the person who sponsored you died. Or lost your business. Then you can apply to the Immigration Service asking to allow you to work off campus 20 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 to support your words. It could be the sponsor's death certificate or 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 have not received any response to your application for renewal of B-2 status, you yourself are responsible for the time frame. And before the expiration of the first 6 months, must apply for a re-extension. Of course, these are additional costs. But it's still cheaper than reopening a case after a 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 urgently need to get the latest information on the process, you can try to draw up an application on the same website and ask a question that concerns you. But Claudette Delacerna does not advise calling USCIS: you will not get through to the officer who is considering your case, and the employees of the Immigration Service who answer phone calls are far from experts on your issue and may not know all the nuances.
“When you call the Immigration Service, especially the number that starts with 800, you will not get through to the officer, but to the person answering the phone. Essentially a secretary. This person's job is solely to answer calls. And with a high degree of probability, this person will not be able to provide you with complete and reliable information (especially specific) in your case. Sometimes, such calls can only create confusion and make you make a mistake. Of course not consciously. But it's still worth understanding this nuance, ”the lawyer convinces.
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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