Change of Status of potential Students and STEM-OPT Policy
Every year hundreds of aspiring students enroll in hundreds of universities in the United States with dreams of broadening horizons and acquiring the coveted American degrees. It may happen that people, travelling to the United States for purposes other than receiving education, find graduate/undergraduate programs, vocational training diplomas or courses that interest them. Or maybe they simply fall in love with the United States Education system. We know that there are special visas for studying in the United States (F, M Visas) and that it is impossible to do so on any other tourist or business Visas (with certain exceptions). Therefore, many a times a situation may arise that would require you to change your status as a non-immigrant to a student. This Article throws light on the process of Change of Status and also lays down the new USCIS Policy regarding the OPT that is the Optional Training Period (which starts after the course/degree/diploma in question comes to an end).
F-1 Visa –
Students applying for a program which requires more than 18 hours of study in a week require an F1 visa. This includes all undergraduate programs as well as graduate programs like MS, MBA, etc. Spouses or children accompanying F-1 visa recipients will travel on an F-2 visa. Please note that spouses are not able to work but may accompany and/or apply for their own visa to the U.S. to work or study. The F1 visa holders are eligible for up to 12 months of OPT (optional practical training) on completion of graduation. That means you can work for a year after you finish your studies. It is a temporary employment permission allowing students the opportunity to gain practical experience in their field of study. After that, you’ll be required to apply for a work visa if you have to continue working in the US. You can remain in the US up to 60 days after the completion of your course even if you don’t have a job offer or haven’t applied for OPT.
REQUIREMENT of change of status –
The regulations at 8 C.F.R. § 214.2(b)(7) specifically prohibit a course of study in the United States while in B-1 or B-2 status. However, no such prohibition exists for those in E status, so individuals in that status can enroll in school as long as it does not interfere with their ability to maintain their E status.
Individuals who are prohibited from enrolling in class must first acquire F-1 (academic student) or M-1 (vocational student) status. Enrolling in a course of study while in a status that does not permit enrolling in a class will result in a status violation. Individuals who have violated their nonimmigrant status by enrolling in a course of study are not eligible to extend their status or change to F-1 or M-1 status.
If you are in the United States in valid nonimmigrant status for a purpose other than to attend school and wish to change your nonimmigrant status to a student status while remaining in the United States, you must meet the criteria below and submit an application with USCIS to change your status.
In general, you may apply to change your nonimmigrant status while remaining in the United States if:
- you were lawfully admitted to the United States in a nonimmigrant status;
- your nonimmigrant status remains valid;
- you have not violated the conditions of your status; and
- you have not committed any crimes or engaged in any other actions that would make you ineligible for change of status.
Before USCIS may approve your application, you must take the following steps:
- Apply to and receive acceptance from a U.S. Student and Exchange Visitor Program (SEVP)-certified school.
- Obtain an initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, from the SEVP-certified school. The Designated School Official (DSO) should give change of status in the Issue Reason section of the Form I-20.
- Pay the I-901 SEVIS Fee.
- File a Form I-539, Application to Extend/Change Nonimmigrant Status, with USCIS.
STEM-OPT for F1, M1, J Visas
Unlawful presence is the period of time when you are in the United States without being admitted or paroled or when you are not in a “period of stay authorized by the Secretary.” You may be barred from reentering the United States for a term depending on the term of your unlawful presence. On Aug. 9, 2018, USCIS issued a policy memorandum (Accrual of Unlawful Presence and F, J, and M Nonimmigrants, changing how the agency calculates unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, and M-2 dependents, who fail to maintain status in the United States. According to the previous policy of USCIS, foreign students and exchange visitors (F and J non-immigrants, respectively) who were admitted for, or present in the United States in, duration of status (D/S) started accruing unlawful presence on the day after USCIS formally found a non-immigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.
F and J non-immigrants, and foreign vocational students (M non-immigrants), who were admitted until a specific date (date certain) accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a non-immigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.
To reduce the number of overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under the Immigration and Nationality Act, USCIS is now changing its policy on how to calculate unlawful presence for F-1, J-1, and M-1 nonimmigrants, and their dependents (F-2, J-2, and M-2). The new policy clarifies that the F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the alien had already started accruing unlawful presence on the earliest of the following:
- The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
- The day after an immigration judge ordered the alien excluded, deported, or removed (whether or not the decision is appealed).
An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:
- The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
- The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
- The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
- The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).
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