How A Deferral To A New Semester Kills Your Change Of Status Application
Author: US Visa Attorney Alena Shautsova
You filed an application not change status in the US to become a student here. You previously had an H1B, B, or some other status and decided it would be a good idea to get a degree in the US. You applied for a change of status while you were still in status; you obtained I 20, SEVIS registration, paid the fees, collected all the documents, etc. Now, you are waiting, and waiting, and waiting...
Several months later a decision comes: it states you COS (change of status) application was denied because the gap between the end of your status and the beginning of your studies according to the I 20 is more than 30 days. You say: wait a second, it cannot be. My status was expiring on December 31, and my school was to start on January 23. This is a mistake! You contact your school… and they tell you that they had to defer the beginning date of your classes to the next semester once, or maybe twice since USCIS took several months to consider your application… You did not know about it? Or, well, sorry.
In February 2018, USCIS adopted a new policy stating that even though you filed COS application timely, during the pendency of this application you also have to maintain your first immigration status so that the gap between the end of your status and course’s start date is no more than 30 days. What if you cannot do it? (You H1B is over and is not possible to extend it?) Then, bad luck, you need to leave the US or hope that the beginning of your school semester will not be “deferred” and the USCIS will make a fast decision on your application.
A school that has flexible start dates (such as most English language courses) will usually not have to “defer” you to a new semester and will not create an issue for you and your status. But a school with rigid start dates will likely be a bad fit for you if you cannot extend your underlying status in the US.
When a change of status application is denied, you can file a motion to reconsider or reopen or both. Many refer to this process as “appeal” even though strictly speaking it is not an appeal. You may also try your luck in a Federal court. The problem here is that if ultimately your motion is denied, all the time you remained in the US after the initial denial will be considered unlawful presence and as such, you may collect enough “illegal days” in the US to bar you from coming back to the US for years.