Changing to F-1 Status While in the United States

If an alien is already in the U.S., he/she can change non-immigrant status to F-1 status if he/she would like to pursue full-time academic studies in a college, university, seminar, conservatory, private academic high school, other academic institution, or language-training program. However, it is advised that an alien refrain from applying for a change of status within the first 90 days of his/her entry into the United States. (For more general information about Change of Status, click here.)This advisory is given because those on a valid F-1 non-immigrant visa/status are subject to the restrictions of non-immigrant intent.

Not every alien is eligible to change his/her status to F-1 in the United States. Aliens who generally cannot apply for F-1 status are:

Persons who are subject to the J-1 two year restriction of home country residence. For further information about J-1, please click here. However, a person subject to such restriction may apply for an F-1 visa through third country visa processing. For more information about third country visa processing, please click here.
K-1 status holders: the fiancé(e) of a US citizen who enters into the U.S. holding a K-1 visa may not apply for a change to F-1 status. For further information about K-1 visa/status, please click here
Visa Waiver Pilot Program visitors: This program exempts certain non-immigrants from the requirement of obtaining a visa for entry into the United States. For more information about Visa Waiver Pilot Program, please click here A Visa Waiver Pilot Program Visitor may not change his status to F-1 status in the U.S.
C status holders: Any alien holding a C transit visa cannot apply for F-1 status;
Transit visitors without visas: Visitors who are in transit in the U.S. without a visa cannot apply for F-1 status; or
Aliens who entered into the U.S. without inspection or have been out of status (An exception applies in the case of F-1 Reinstatement).

Before a non-immigrant visa applicant’s application is approved, a consular officer (at the U.S. Consular/Embassy abroad that the applicant submitted their application to) must first determine whether the non-immigrant actually seeks to enter the U.S. permanently. This precaution is taken because under the Immigration and Nationality Act, there is a legal presumption that all persons seeking entry into the United States are immigrants. Therefore, in order for the non-immigrant visa application to be adjudicated, the applicant bears the burden of having to prove “non-immigrant intent:” that he/she (1) has a residence abroad, (2) has no immediate intention of abandoning that residence, and (3) intends to depart the U.S. upon the termination of the visa.

Although an F-1 student present in the United States may be eligible to apply for a change of status, it is advised that an alien refrain from applying for a change of status within the first 90 days of his/her entry into the United States. (For more general information about Change of Status, click here.)This advisory is given because those on a valid F-1 non-immigrant visa/status are subject to the restrictions of non-immigrant intent.

The USCIS has discretion over the approval of COS applications and can deny applications if they are presumed fraudulent or if the alien has preconceived intent. Applications submitted between 0-30 days of entry are presumed as fraudulent; those submitted between 30-60 days could be denied on the basis of preconceived intent; those submitted between 60-90 days could also be denied on the basis of preconceived intent, but the alien would be able to dispute the claim; applications submitted after 90 days will have the best chance of approval from the USCIS. (For more information about Non-Immigrant/Immigrant intent issues, click here.)

While those aliens who are on a valid F-1 non-immigrant visa/status are subject to the non-immigrant intent provisions, there are certain non-immigrant visas/statuses that offer the alien “dual intent.” Under the dual intent doctrine, even though a non-immigrant must demonstrate the intent to remain in the U.S. only temporarily, he/she may have both a short-term intent to leave and a long-term intent to remain permanently or immigrate to the US. The Doctrine of Dual Intent is recognized by USCIS for the H, L, O, and K visa categories. For more information about the guidelines for dual intent visa holders, click here.

Furthermore, an alien first must apply to study at an approved school in the United States. If he is admitted, the school will issue him a SEVIS Form I-20. The alien student must submit the form and a Form I-539 (Application to Extend/Change Nonimmigrant Status) to the USCIS. The alien student must also prove that he has the financial resources required for his education and stay in the United States. Proof of English proficiency may also be required. If the USCIS approves the application, a new I-94 will be issued to the alien.

Sources:

Electronic Code of Federal Regulations: 8 CFR §§ 214.2(h)(16), (l)(16), (o)(13); 248.1(c); 248.2

Immigration and Nationality Act: INA § 214(b)

(Updated 10/11/2012 by AD)

For more information about F-1 visas, please click on one of the following links: