B1/B2 visa to F1 and F2 (for wife & kid) possible?

[MongolianPanda 7]

Hi Guys... my brother in law came in on a visitor visa with his wife and kid (less than 2 years old)... he wants to know if it's possible to switch from B1/B2 visa to F1? He's thinking about going to school here.. and if possible, how does it work for his wife and kid? Would they also get F2 status? would they have to go back to the country to apply for F1 and F2 visas? Thank you!

[aaron2020 11,651]

They need to go back home and file.

 

He would need to apply and be accepted.  He would need an I-20.  He could only file to adjust within 30 days of school starting . . . and that is not enough time to get an F1 approved before school starts. 

 

His wife and kids would get F2 visas.  

 

Search VJ for the horrible stories of people who tried to adjust status from B2 to F1.  It didn't end well.

Edited November 18, 2019 by aaron2020

[Boiler 43,438]

He can certainly do his research but even if he was able to adjust status, highly risky, he would be land locked.

Edited November 18, 2019 by Boiler

[JeanneAdil 6,201]

 a lot of work for a student visa

1  take the TOEFL exam

2.  apply to a school or college

3.  get accepted and pay the fee to hold place for the semester courses and housing

4   apply for the visa to study / larger universities have lawyers to help with this process

[SusieQQQ 11,584]

As @aaron2020points out , the main problem with doing this is the timing of school semesters vs the validity period of F1 statuses, in conjunction with the long and unpredictable processing times for I539. Makes it very difficult to do a successful change of status to F1, better to go home and apply from there. Also if there is a denial (which could be due to the timing issue rather than any underlying eligibility reason) then there will be a retroactive overstay as of date of original i94 expiry -  an overstay is almost certain if there is a denial under this route because of the 4-6 month processing time for COS application. In turn, this effective overstay means (1) existing B visa is automatically cancelled immediately and (2) any future NIV becomes much harder to get - so the overall risk from this process is pretty high.

Edited November 18, 2019 by SusieQQQ

[MongolianPanda 7]

16 minutes ago, ElDiablo said:

If they are all here on a B2 then they need to go back to their country.

 

A B2 is for temporary tourism visits. So sick of people like the OP being so unbelievably selfish and thinking the rules dont apply to them.

if you're sick, maybe you should go see a doctor before you get worse  ...

 

How is it selfish to see what the possibilities are? It wasn't like it was his intention to come in with a tourist visa to stay here illegally. It's to see if its possible to switch the visa to a different visa (LEGALLY). Maybe you shouldn't accuse others of their intentions without knowing all the facts.. it appears from all of your comments to other posts on VJ are the same way. 

 

and for your information, I'm a law abiding citizen.. all the processes I've done so far are legal and legit. check my timeline before you accuse someone of something they are not. Hopefully you find a cure for your sickness mister grumpy.

2 hours ago, aaron2020 said:

They need to go back home and file.

 

He would need to apply and be accepted.  He would need an I-20.  He could only file to adjust within 30 days of school starting . . . and that is not enough time to get an F1 approved before school starts. 

 

His wife and kids would get F2 visas.  

 

Search VJ for the horrible stories of people who tried to adjust status from B2 to F1.  It didn't end well.

Got it.. thanks for your feedback.. appreciate it!

[MongolianPanda 7]

1 hour ago, SusieQQQ said:

As @aaron2020points out , the main problem with doing this is the timing of school semesters vs the validity period of F1 statuses, in conjunction with the long and unpredictable processing times for I539. Makes it very difficult to do a successful change of status to F1, better to go home and apply from there. Also if there is a denial (which could be due to the timing issue rather than any underlying eligibility reason) then there will be a retroactive overstay as of date of original i94 expiry -  an overstay is almost certain if there is a denial under this route because of the 4-6 month processing time for COS application. In turn, this effective overstay means (1) existing B visa is automatically cancelled immediately and (2) any future NIV becomes much harder to get - so the overall risk from this process is pretty high.

Thank you.. this makes total sense.. I wouldn't want them to jeopardize their future visits with this mistake... I will let him know the best way is to go back after their current visit is done and to apply for F1 at a later time. Thanks again! 

[HRQX 4,145]

19 hours ago, SusieQQQ said:

Also if there is a denial (which could be due to the timing issue rather than any underlying eligibility reason) then there will be a retroactive overstay as of date of original i94 expiry

No overstay if certain conditions are met: https://fam.state.gov/FAM/09FAM/09FAM030211.html "For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the From I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that: (a) the alien does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and (b) the alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either: (i) that the application was subsequently approved; or (ii) if the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous."

[MongolianPanda 7]

6 minutes ago, HRQX said:

No overstay if certain conditions are met: https://fam.state.gov/FAM/09FAM/09FAM030211.html "For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the From I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that: (a) the alien does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and (b) the alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either: (i) that the application was subsequently approved; or (ii) if the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous."

Thank you @HRQX !

[SusieQQQ 11,584]

41 minutes ago, HRQX said:

No overstay if certain conditions are met: https://fam.state.gov/FAM/09FAM/09FAM030211.html "For aliens who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the From I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that: (a) the alien does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and (b) the alien did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either: (i) that the application was subsequently approved; or (ii) if the application was denied or the alien departed while the application was still pending, that the application was timely filed and nonfrivolous."

It seems to me that the paragraph referred to above is in regard to unlawful presence, not overstay. You can have overstay without unlawful presence, which is what can happen in this kind of instance. So there is no ban for unlawful presence, but there is still the overstay after end of status and automatic cancellation of existing visa:

 

from the guide for i539 - note that the lawfulness of the stay period after i94 expires is explicitly noted to be retroactive only after approval.

 

What if I file for change of status on time but USCIS does not make a decision before my I-94 expires?

Your lawful nonimmigrant status ends and you are out of status when your Form I-94 expires, even if you have timely applied to change your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your change of nonimmigrant status request. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for change of status pending.
Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your change of status application is pending if it was filed prior to the expiration of your Form I-94.
If your application for a change of status is approved, the change of status will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful.
If your application is denied, you may be required to depart the United States immediately.
In addition, any nonimmigrant visa in your passport granted in connection with your classification becomes void. Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).

 

https://www.uscis.gov/sites/default/files/USCIS/Resources/C2en.pdf

 

 

Edited November 19, 2019 by SusieQQQ

[HRQX 4,145]

31 minutes ago, SusieQQQ said:

there is still the overstay after end of status and automatic cancellation of existing visa

The visa isn't automatically cancelled IF the conditions I mentioned above are met. Refer to Section 222(g) of the Act; "Nonimmigrant visa void at conclusion of authorized period of stay"

 

From the DOS FAM: "even aliens fitting into one of these categories may be deemed to be in a period of authorized stay in certain circumstances, as noted below."

Edited November 19, 2019 by HRQX

[SusieQQQ 11,584]

I quoted the guide for form i539 and it clearly says status ends with the i94 end unless approved afterwards, and that the visa is voided on a denial decision.  I note HQRX skips the issue of the high chance of F1 denial due to timing issues, the reason for which we have seen many F1 CoS sob stories on VJ. 

 

To add, this is why people will often leave the US before their I94 expires if they are still waiting for an extension or change of stay decision. If they do not and it is denied, not only is the B visa cancelled but the overstay becomes apparent when filling in the form to try get the next B visa ...risky process if one wants to visit again. If you leave before the i94 expires you’re fine. I guess OP’s brother could put an I539 application in and make a final decision about what to do when his i94 is about to expire, if he doesn’t mind putting life on hold for those months. It will be much faster to get an F visa approved at home of course as there is not the same uscis processing time issue involved in a consular visa application. There is no reason to expect a different eligibility decision on approval at consulate or via the i539, but there is the fact that as pointed out before there is extra risk of denial due to timing issues doing it via a CoS application. Your brother appears to have all the factors he needs to decide what the best and least risky course of action is for him.

[geowrian 22,335]

<Self deleted>

Edited November 19, 2019 by geowrian

[HRQX 4,145]

59 minutes ago, SusieQQQ said:

I note HQRX skips the issue of the high chance of F1 denial...

I acknowledge the very high odds of the COS denial. What I was pointing out is that your absolute statements (e.g. "after end of status and automatic cancellation of existing visa") aren't supported by the law and it's official interpretations (CFR, FAM, etc.).

59 minutes ago, SusieQQQ said:

If they do not and it is denied, not only is the B visa cancelled

Are forums your point of reference? If so, they should be viewed with a dose of skepticism as the posters might not be forthcoming with the full details. For example, details not shared in the threads could be unauthorized employment or that the I-539 wasn't timely filed.

Edited November 19, 2019 by HRQX

[SusieQQQ 11,584]

27 minutes ago, HRQX said:

 

Are forums your point of reference? If so, they should be viewed with a dose of skepticism as the posters might not be forthcoming with the full details. For example, details not shared in the threads could be unauthorized employment or that the I-539 wasn't timely filed.

What are you talking about?? I quoted only the official USCIS document and linked to it.  I guess you neither read what I quoted nor noted the uscis.gov url for the reference.

Edited November 19, 2019 by SusieQQQ