Common Questions: Change of Status and CSPA

Listed below are some common questions and information compiled with the assistance of an immigration attorney and individuals who have been through the process. If you have questions that are not answered below, please feel free to fill out the Legal Support Program form. Please note that the information below does not constitute legal advice. We cannot guarantee the information below is correct and cannot advise you of any deadlines or tell you the best course of action to take or not take in any legal case. We recommend checking out the direct source links from the government that are included in the explanations.

What is Change of Status?

Change of Status (COS) is the process of transferring from one nonimmigrant visa to another. For example, H4 to F1. A Change of Status may be required because each visa status has limitations on what is allowed with that status or that visa status may expire (“Aging-out” at 21). Please note that a pending COS application is not a legal status. The COS application must be submitted with enough time to be approved prior to the end of the current visa to avoid the situation where the current visa expires before the COS application is approved. Failing to maintain the current visa status prior to securing the COS approval notice may result in an undocumented status. Additionally, a COS may require you to leave the country. Please plan accordingly with a lawyer.

Additional explanation for why this is required:

When entering the US, an officer at the port of entry would have asked you or your parent/guardian a question along the lines of “What is the purpose of your visit to the US?”. Either you or your parent/guardian would have given an answer to the question. For example: the answer could be “We are coming to visit family”. Based on that answer, the officer allowed you to enter the US only for that purpose, which is to visit family. If you later decided that you wanted to work in the US, you cannot just walk into an employer and get a job. This is because the immigration officer only allowed you to come in for visiting your family.You need to request permission from the US government to start working.

Source: https://www.uscis.gov/visit-the-united-states/change-my-nonimmigrant-status; https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment/changing-to-a-nonimmigrant-f-or-m-student-status#:~:text=For%20most%20people%2C%20you%20will,to%20change%20to%20student%20status.

But I entered on H4/L2/TD/E1/E2 visa and have been studying without ever filing for change of status. How was that possible?

If you entered the US lawfully on one of the following visas and remain in status, then you do not need to request a change of status to study in the US as long as you are under 21.

Dependents of H1 visa holders (H4 visa holders)
Dependents of L1 visa holders (L2 visa holders)
Dependents of TN visa holders (TD visa holders)
Dependents of E1/E2 visa holders
Dependents of A visa holders
Dependents of G visa holders
Dependents of I visa holders
Dependents of J visa holders
Dependents of F and M visa holders (But only allowed to attend elementary, middle and high school. Will require a COS if you want to attend post-secondary education).

Link: https://www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study.pdf

https://www.uscis.gov/visit-the-united-states/change-my-nonimmigrant-status

If I am on a H4/L2/TD/E1/E2 status and I have the right to study in the US, why would I ever want to apply for a change of status?

There are two main reasons to apply for a COS. The first concern is age. Under US law, a dependent is defined as under the age of 21, which the dependent child will most likely reach when studying in higher education. Once the dependent child becomes 21, they age out of their visa. So, there can be a scenario where a dependent child is studying in college/university on a H4/L2/TD/E1/E2 visa, turns 21, and no longer be allowed to study which could result in an incomplete degree.

The second reason why dependent children apply for a COS to a F1 visa is for the career benefits. Dependent children are not allowed to gain career experience through paid work like internships or jobs, on or off campus. This can significantly limit the dependent child’s ability to access professional experience that can make them competitive in higher education or job markets.

I am on a H4/L2 status and my parents have applied for a green card. Does that allow me to continue studying without filing for a change of status?

Applying for a green card or permanent residency is potentially a long and complicated process. Depending on which stage of the process your parents are in, there might or might not be a way for you to continue studying without applying for COS. When you turn 21, you age-out of the dependent visa and may lose the ability to study even if a green card application is pending. Below are situations to consider:

If your parents have an approved I-140, but they have not filed for I-485, then you will require a COS to continue studying once you turn 21.
If your parents have an approved I-140, filed I-485 for you, but their priority date is not current in the final action date chart in the visa bulletin, and you are about to turn 21, then you will require a COS to continue studying once you turn 21.
If your parents have an approved I-140, filed I-485 for you, their priority date is current in the final action date chart, and you are under the age of 21, your age is considered frozen and you will not require a COS to continue studying even if you turn 21.

Can Studies Be Continued While Change Of Status To F1 Is Pending?

If you were in H4/L2/TD/E1/E2 status at the time of your COS application, you can continue your studies until USCIS has made a decision on your application.
If you were in B1/B2 status at the time of your COS application, you are prohibited from continuing your studies.

What are the requirements for applying for change of status?

In order to be eligible to apply for COS, you have to meet the following conditions

You lawfully entered the US with a nonimmigrant visa.
Your non-immigrant status remains valid.
You have abided by the conditions of your non-immigrant visa. For example: If you entered as a tourist, you didn’t attempt to work or study in the US.
You have not committed crimes that make you inadmissible to the US.
You need to qualify for the non-immigrant visa you are trying to apply for. For example:If you are currently on a H4 visa and would like to switch to F1, then you need to be able to prove that you meet all the requirements for the F1 visa.

https://www.uscis.gov/visit-the-united-states/change-my-nonimmigrant-status

LINK: https://www.uscis.gov/sites/default/files/document/guides/C2en.pdf

How can I apply for a change of status to F1?

The process to change your status to F1 is actually a two step process. The approval process can take months, so ensure the application is filed significantly before the 21 birthday and before the I-94 expiration date.

Request the educational institution to issue an I-20.
File form I-539 Application To Extend Or Change Nonimmigrant Status.

Link: https://www.uscis.gov/sites/default/files/document/guides/C2en.pdf

How can I request an I-20 From My Educational Institution?

Every educational institution that is eligible to take foreign students has one or more designated school officials (DSOs) who are designated by the US government to issue I-20s. They will usually ask for one or more documents to prove that you are a bonafide student and will issue you an I-20. The process will vary from school to school. So, the best way to request an I-20 would be to reach out to the educational institution’s DSOs. If you don’t know who the DSO is for your educational institution, reaching out to the International Student Office would be a good first step.

What documents do I need to file for a change of status to F1?

Below is the list of general documentation necessary to file a COS. More specific documentation may be necessary based on the visa type. Please research accordingly. Additionally, USCIS has started accepting COS applications electronically. So, if you would like to file the COS application electronically, you need to submit G-1145 E-Notification of Application/Petition Acceptance.

A one page cover letter written by you explaining why you would like to switch to F1.
1. Explains current visa type
2. Explains that you want to change visa to F1
  1. Explains why you choose the university
  2. What you plan to study
  3. What you want to do with your education
3. Explains why you do not want to leave the US to file the COS (if applicable)
4. Explains why after securing the education, you would not stay in the US (if applicable)
Filled out form I-539
Application fee for from I-539
Evidence of financial support to complete your education. This might be bank statements, stock accounts, letter from the educational institution indicating financial support, etc.
Copy of the admission letter from your educational institution
Copy of your I-20. The student attestation section of the I-20 must be signed before you make a copy.
Copy of the receipt of payment of SEVIS fee which is different from the I-539 application fee.
Copy of all of your immigration documents to show that you entered lawfully and you are currently present lawfully (I-797s, passport, visa stamps, I-94s, EAD card).

LINK: https://www.uscis.gov/i-539

What Is The Processing Time for Change Of Status Application To F1?

The processing times for change of status applications vary based on which processing center is processing your application. You can check the current processing times by Processing Times (uscis.gov). Please expect USCIS to take several months to process the application.

Is There A Way To Expedite Change Of Status Applications?

You can make a request to expedite your COS application through How to Make an Expedite Request | USCIS. But it is not guaranteed that USCIS will expedite your application.

Is There A Way To Premium Process Change Of Status Applications?

USCIS doesn’t currently allow for premium processing of COS applications on form I-539. However, a change to this may be in the works and this will be updated if that occurs.

If I’m on an F1 visa and my family’s priority date becomes current before I turn 21 (currently 17), will they be able to file for my GC as if I was on an H4 visa?

This falls into CSPA regulations, but the short answer would be yes so long as everything aligns. It is best to check-in with your parent’s immigration attorneys to go over your options in more detail.

I got an RFE for my change of status application to prove non-immigrant intent. What is the best way to proceed?

You should respond within the time allotted, and work with your attorney on the next steps. The Non-Immigrant Intent question can be established through various means, but it ultimately depends on your particular COS case.

What's CSPA?

CSPA stands for Child Status Protection Act. It was passed by congress on August 6, 2002. It allows certain qualified people to retain their child status for immigration purposes past age 21.

Why is the 21st birthday significant in US immigration law?

Under US immigration law, a child is defined as follows * Some under the age of 21 * Remains unmarried Under US immigration law, someone classified as a child can receive a green card/Legal Permanent Resident (LPR) status along with his/her parents. So, as soon as someone turns 21 years of age, they are no longer eligible for the child status. This is often known as the "aging out" of status. The aged out adult might have to file a new application and potentially wait for a long time to get a green card. In certain cases, they might be ineligible to get their green card/LPR status.

Why was CSPA enacted?

USCIS processing delays have contributed to some individuals aging out while waiting for the agency to adjudicate applications. To prevent USCIS adjudication delays from causing people to age out, congress passed CSPA.

What does CSPA do?

CSPA has multiple provisions. But we will focus on the employment based immigration provisions in this summary.

1. Adjudication Delay Subtraction Provision

2. Age Freezing Provision

Adjudication Delay Substraction Provision:

This provision allows for the amount of time USCIS spent adjudicating I-140 to be subtracted from the child's age. Let's take an example. Assume a family of three - A father, mother and a daughter. The daughter is 20 years old. The father's employer sponsors him for an employment based green card under the EB2 category. The father's employer has filed for an I-140 (Immigrant Petition For Alien Worker) and it takes about 16 months for USCIS to adjudicate the father's I-140. The daughter is now over the age of 21 and would normally be ineligible to get a green card with her father. But because of the adjudication delay subtraction provision in CSPA, the daughther's age is 21 years old and four months - 16 months = 20 years old. So, she remains eligible to file for a green card.

What if my parents' employer had filed multiple I-140s? Which one's adjudication delay should be counted?

USCIS operates on a latest action overrules previous action basis. So, the processing time on the I-140 which was adjudicated the latest should be the one that should be used to calculate age.

For example:

1. EB2 I-140 - Adjudication Delay - 15 months - Approved in April 2010

2. EB3 I-140 - Adjudication Delay - 5 months - Approved in April 2021

Since the EB-3 I-140 was the latest one to be adjudicated, you can only subtract 5 months from the child's age.

Age Freezing Provision:

The age freezing provision of CSPA allows the age of the child to be frozen if the following conditions are met

1. An immigrant visa number is available for the child (interpreted by USCIS as “final action date” being current)

2. The child must "seek to acquire" permanent residence within one year of a visa number being available. So, if both of those conditions are met, the child's age is frozen forever.

For example: the daughter in the previous example would have her age frozen at 20 years even if it takes USCIS 10 years to process her green card application if she meets both of the criterias above.

What does it mean for a visa number to be available?

USCIS currently defines an immigrant visa number being available when the priority date is current in the final action date chart on the visa bulletin.

What does it mean for a child to "seek to acquire" permanent residence?

The child must apply for permanent residence either through adjustment of status (I-485) or through consular processing at a consulate abroad.

What about the automatic conversion provision in CSPA?

CSPA has an automatic conversion provision that was supposed to automatically convert the applications of aged-out adults to the correct category. But unfortunately, USCIS takes a very narrow interpretation of this provision and only applies it to family based immigration applicants. So, this provision doesn't apply to employment based immigration applicants.

Sources: https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7

This is continuously being updated and added to. If you have a suggestion, please email info@improvethedream.org.