What if my change of status from F-1 to B-2 is denied?

mcdj

mcdj

New Member
Background: My OPT expired 1/17 and USCIS received my change of status request before 3/17. I received an RFE mid May and have responded to them in time. I tried to provide everything they requested (including copy of my plane ticket), however am worried about the proof of residence abroad I had to provide since I have been here as an F-1 student since 2012 and have not been able to buy or rent something back home. The items they requested are impossible to provide for someone who is in my situation and only apply to the average person who applies for a B-2 extension.

Now I am wondering what will happen if they deny my case. There is an important event I really want to attend in July and I also need time to sell my car all my furniture here. If my case gets denied, can I leave the country and return shortly after on an ESTA? If I do so, I intend to have a return ticket as well - my goal is still to relocate to my home country.

Here’s a quick summary of my time here:
  • August 2012: entered country on F-1 Visa
  • October 2017: Applied for OPT
  • December 2017: Graduated
  • January 2018: Received EAD & started working after approved date
  • January 2019: OPT expired and stopped working
  • February 2019: Mailed change of status to B-2
  • May 2019: Received RFE
  • June 2019: Received confirmation from USCIS that they received my response to RFE
 
Can you clarify when your authorized stay ends - you only filed for CoS after your OPT expired?
Anyway if is denied after your authorized stay ends (and I am assuming your authorzed stay has by now ended?), your existing visa (F) is void, but that doesn't matter for you anyway. However what would matter is that you will have been in overstay since the end of your authorized stay, which means that you would have to answer "yes" to the ESTA question on this topic, and will probably be denied an ESTA as a result. That would mean you'd have to apply for a B visa. It will probably be difficult under the circumstances.

Incidentally, what have you been doing in the half year since you stopped working? You have certainly had plenty of time to sell your car, furniture etc.

(By the way, you say that if you can enter on ESTA you "plan" to have a return ticket - note that having one is actually a condition of being allowed in on ESTA, it is not just a "nice to have".)
 
SusieQQQ said:
Can you clarify when your authorized stay ends - you only filed for CoS after your OPT expired?
Anyway if is denied after your authorized stay ends (and I am assuming your authorzed stay has by now ended?), your existing visa (F) is void, but that doesn't matter for you anyway. However what would matter is that you will have been in overstay since the end of your authorized stay, which means that you would have to answer "yes" to the ESTA question on this topic, and will probably be denied an ESTA as a result. That would mean you'd have to apply for a B visa. It will probably be difficult under the circumstances.

Incidentally, what have you been doing in the half year since you stopped working? You have certainly had plenty of time to sell your car, furniture etc.

(By the way, you say that if you can enter on ESTA you "plan" to have a return ticket - note that having one is actually a condition of being allowed in on ESTA, it is not just a "nice to have".)
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My authorized stay ended on March 17. USCIS confirmed that they received my CoS request before that date.

These past months I have been traveling the state, which is exactly why I applied for a CoS to B-2 in the first place. However, I haven't been able to go to far from my mailbox because I have have been waiting for an answer. I haven't sold my belongings because I still need them, especially my car to travel.
 
OK, so you are in the "limbo" at present where you are in overstay but have not yet started to accrue unlawful presence.

I'm sure you'e seen this but just to refresh:

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
 
Yes, thank you for checking! Do you know if I do accrue unlawful presence immediately when they send the denial, or do they give me a specific date I must leave by?
 
mcdj said:
Yes, thank you for checking! Do you know if I do accrue unlawful presence immediately when they send the denial, or do they give me a specific date I must leave by?
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You have to leave immediately. Bear in mind even if you don't accrue unlawful presence (and therefore will not incur an actual ban on entry) your overstay still counts back to, in your case, 17 March. So you will still have overstayed your authorized presence, which matters in terms of how you can answer ESTA and visa questions.
 
Got it, thank you. Do you think I would still be eligible to apply for a B-2 visa in the future?
 
mcdj said:
Yes, thank you for checking! Do you know if I do accrue unlawful presence immediately when they send the denial, or do they give me a specific date I must leave by?
Click to expand...
You accrue unlawful presence immediately when they send the denial, so you would have accrued some unlawful presence by the time you get the notice. You don't get a ban on leaving until you accrue 180 days of unlawful presence, so that's not an issue. However, INA 222(g) is triggered which voids the visa you entered on (though you probably weren't going to use that F1 visa again anyway), and requires you to apply for US visas in your country of nationality from now on.
 
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