Need F1 visa: How to safe guard existing B1/B2

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xerostomic

Registered Users (C)
Hey guys
I have got some useful information through this forum and I would appreciate if you can help me reach a decision.
I want to know if a person on B1/B2 apply for change of status and his I-539 is rejected and he ends up overstying then would it be possible for him to re-enter US incase he leave US immediately after I-539 rejection. I know his over stay would not be illegal, but I heard that one may face problem if he wants to come back.
Secondly, if I apply from my home country and my F1 gets rejected then what are the chances that my B1/B2 visa would be cancelled/revoked.
Actually I am waiting for a family based immigrant visa and I had three trips during this waiting time, so I want to remain safe as I am aware that chances of getting F1 are low in such situations, so I don't want to lose my B1/B2 as atleast I am able to visit my family and live with them for few months.
 
an extension of a b1/b2 visa that is denied and the alien stays past the i-94 expiration date will result in the visa becoming void under section 222(g) of the INA. Next time this alien tries to enter the USA again, the officer at the port of entry has full discretion to cancel the visa, grant a restricted entry, deport you, etc. It is hard to predict, but many visas have been lost because of this.

Having a visa cancelled because of this will taint your immigration history and will make it harder to get any other non-immigrant visas.
 
PraetorianXI said:
an extension of a b1/b2 visa that is denied and the alien stays past the i-94 expiration date will result in the visa becoming void under section 222(g) of the INA. Next time this alien tries to enter the USA again, the officer at the port of entry has full discretion to cancel the visa, grant a restricted entry, deport you, etc. It is hard to predict, but many visas have been lost because of this.

Having a visa cancelled because of this will taint your immigration history and will make it harder to get any other non-immigrant visas.
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Thanks for the reply. I want to change visa status, not extension of current visa.
Secondly will my B1/B2 remain valid if I apply from my home country. I never overstayed here and I mentioned about my immigrant visa petition in DS 156 when I applied for visit visa, so I don't see any reason for cancelling my visit visa.
 
As far as I know, for COS to F-1 from any other NIV status, one needs to inform the officer at the POE of their intentions. The officer then annotates the I-94 to allow the possibility of COS to F-1 status.

xerostomic said:
Thanks for the reply. I want to change visa status, not extension of current visa.
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Is there any interview for I-539

Triple Citizen said:
As far as I know, for COS to F-1 from any other NIV status, one needs to inform the officer at the POE of their intentions. The officer then annotates the I-94 to allow the possibility of COS to F-1 status.
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I spoke to schools international student office and they said that in past change of status from B1 to F1 was difficult, but for an year or so B1 to F1 has a good success rate, so they told me that chances of getting F1 are same either way. They told me so because they don't know about my I-130. I was comparing I-539 and DS 156. In I-539 in one question it says, 'Are you, or any other person included on the application, an applicant for an immigrant visa?' and in other question it says,'Has an immigrant petition ever been filed for you or for any other person included in this application?'
If answer to any of above is yes then explain on separate paper. I was wondering if they call for interview or their decision is based on what I explain on paper.
 
I seriously doubt your school's international student office has concrete information on this subject, but I wish you good luck.

xerostomic said:
I spoke to schools international student office and they said that in past change of status from B1 to F1 was difficult, but for an year or so B1 to F1 has a good success rate
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Effect on immigrant visa

Thanks Guys
I just need a quick answer. If my change of status is denied due to immigrant intent and I leave US immediately will it have any impact on my immigrant visa, like cancelation of I-130 or making me inadmissible even on immigrant visa.
This is the only concern I have now as I have made my mind to apply for change of status
 
School admission offfices provide information based on current statistics. What are serious doubts based upon?
 
xerostomic,

The quick answer to your question is that no one knows. On a point of law you would not become inadmissible: your current status would continue to remain valid for the duration of your I-94, and your current visa would continue to remain valid till its expiration. On a point of discretion by an immigration officer, it is the officers 'discretion' we are talking about. Define discretion. It's exactly like 'serious doubts'. Your concern is valid. I can't see most people being able to give you an honest Yes or No answer.
 
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niladri30 said:
xerostomic,

The quick answer to your question is that no one knows. On a point of law you would not become inadmissible: your current status would continue to remain valid for the duration of your I-94, and your current visa would continue to remain valid till its expiration. On a point of discretion by an immigration officer, it is the officers 'discretion' we are talking about. Define discretion. It's exactly like 'serious doubts'. Your concern is valid. I can't see most people being able to give you an honest Yes or No answer.
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Thanks alot
I have enrolled in BU's school of dental medicine so I don't expect any disinformation from a reputed school, my only concern is because of my I-130.
I have the option to defer admission till the August of 2009 in a hope that my immigrant visa PD might become current ( which is 9 months away), thats why I am thinking that just incase my B1/B2 to F1 conversion doesn't occur I may not become inadmissible under section 222g or they may not cancel my approved I-130 which I hope is getting closer to my PD.
Does this section 222g makes one inadmissible to only non-immigrant visas or both immigrant and non immigrant visas.
 
This should clear things up:

You can no longer become inadmissible under section 222g if you filed a timely extension / or change of status application, even if you had to depart AFTER the expiration of your current status, due to USCIS processing times.


However, stupid wording still makes your presence "unlawful" the day the COA petition is denied. I doubt they would hold a day or 2 against you (because that is not the intent of the law, whatever the letter of the law might be), but that is my personal opinion, you better talk to a lawyer about that.
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INS has announced in a recent field memorandum that it has revised its policy with respect to the automatic voidance of nonimmigrant visas under section 222(g). This change in policy affects persons issued B, H, L and O visas as well as other nonimmigrant visas.

Section 222(g) provides that an alien who was admitted on a nonimmigrant visa and who remains in the United States beyond the authorized period of stay becomes subject to 222(g). When the alien is subject to section 222(g), his or her nonimmigrant visa becomes automatically void at the conclusion of the authorized stay. Aliens who remain in the United States beyond the authorized period of stay also accrue unlawful presence towards the three and ten year bars under Section 212(a) of the INA.

Previously, the INS had considered nonimmigrants who had filed timely extension of stay or change of status applications but had departed the United States after the expiration of their nonimmigrant periods of stay, but before the approval of their extension or change of status applications, to be subject to 222(g). This policy was particularly damaging to nonimmigrants in B status, given the lengthy processing time for B extension applications.

The INS, in cooperation with the Department of State ("DOS"), has revised its interpretation of "remain in the United States beyond the period of stay authorized by the Attorney General" for unlawful presence and the automatic voidance of nonimmigrant visas under section 222(g). The INS will now consider as a period of stay authorized by the Attorney General the entire period during which a timely filed and nonfrivolous extension or change of status application has been pending with the Service, provided the alien has not engaged in any unauthorized employment. This authorized period of stay will continue until the date the INS issues a decision approving or denying the application.

The practical effect of this new interpretation is that nonimmigrants who timely file extension of stay or change of status applications and subsequently depart the United States after their initial period of stay expires, but before the extension or change of status is granted, will no longer have their visas voided under Section 222(g).
 
Thanks niladri30 for all this detail and encouragment. What I got is that if I apply before the expiration of my I-94 I can be safe.
Secondly it should not have any adverse effect on my immigrant visa case.
 
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