Starting School When Change of Status Application Is Pending

The increasing unemployment rate inevitably affects foreign nationals living and working in the U.S. on a work visa.  We have been happy to help many clients over the past months who have either been laid off or have decided to seek a better opportunity to attend school by changing their status to F, J or M while they are in the U.S.

In light of the Form I-539, Application to Change of Status, processing timelines (~2-3 months),  a very frequent question which arises in such situations is “Can I start school while my I-539 application to change status is pending?”  The answer is that it depends on the status from which the applicant is changing.  Generally, if the person’s current status allows study then the person is allowed to start study while the change of status is pending.  Some of the most frequent cases are discussed below.

Changing From H-1B/H-4 (Or Another Status Which Allows Study) To F-1/M-1 Status

The regulations provide that  H-1B and H-4 holders are allowed to study while they maintain valid H-1B/H-4 status.  As a result an H-1B/H-4 holder who files timely I-539 Change of Status application to F-1 or M-1 is allowed to start school while the application is pending.  It is important to note that the regulations provide that starting school before filing an application to change status to F-1 or M-1 does not, by itself, make the applicant ineligible for the requested F-1 or M-1 status (this is not the case for B-1 or B-2 holders).

Changing From B-1/B-2 (Or Another Status Which Does Not Allow Study) to F-1/M-1 Status

Due to the fact that B-1/B-2 holders are not allowed to study, even if the file a timely application to change status to F-1 or M-1, such B-1/B-2 holders cannot start studying until the F-1 or M-1 application to change status is approved by USCIS.  Also, it is important to note that B status holders who do not have the “prospective student” notation on their I-94 card may be ineligible to apply to change status to F-1 or M-1 from within the U.S.

By | Last Updated: May 20th, 2017| Categories: H-1B, News|

About the Author: Dimo Michailov

Dimo Michailov
Dimo has over 15 years of experience in US immigration including employment-based immigration benefits, corporate compliance and family based immigration. He represents corporate and individual clients in a wide range of cross-border immigration matters including mobility of key foreign executives and managers, specialized knowledge workers, and foreign nationals with extraordinary ability.

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The Capitol Immigration Law Group has been serving the business community for over 15 years and is one of the most widely respected immigration law firms focused solely on U.S. employment-based immigration.   Disclaimer:  we make all efforts to provide timely and accurate information; however, the information in this article may become outdated or may not be applicable to a specific set of facts.  It is not to be construed as legal advice.