Maria M. Mihaylova, Klasko Immigration Law Partners

Congress created the F-1 visa category in 1924, allowing foreign nationals to come to the United States and study. Initially, legislators were driven by the idea that U.S. students will benefit from the cultural exchange of ideas and experiences that naturally occurs when people of diverse backgrounds come together.

However, F-1 students quickly demonstrated they bring far more than just a cultural exchange to a school setting. Data consistently shows F-1 students are actively contributing to the U.S. economy, paying roughly $37 billion into the system in 2017 alone, and creating more than 450,000 U.S. jobs. Multi-billion-dollar companies like Moderna, SpaceX, WeWork, Sprinklr, Rubrik and Stripe were started by former international students like Elon Musk (Wharton Business School), and Adam Neumann (Baruch College). An integral part of many industries, F-1 students make invaluable contributions to both the U.S. economy and U.S. employers, helping drive innovation and job creation.

Yet, for a visa category that has been recognized to help the United States bring in the “best and brightest” individuals who have consistently allowed the United States to remain at the forefront of development and progress, the ability of foreign nationals to obtain and maintain F-1 visa status has been gradually impeded by a series of administrative policy changes over the last two years. These changes have effectively pushed many talented foreign students to pursue their education and ultimately, make contributions to the economies of other countries like Canada, Australia, China, Russia and Turkey, all of which have adjusted their systems in recognition of the immense benefits of international students.

Generally, there are two ways for foreign nationals to obtain F-1 status. A student can either: apply for a F-1 visa at a U.S. Embassy; or if they are already in the United States in lawful status, apply to change said status to that of an F-1 student. Most U.S. students enter in F-1 status after they apply for a visa abroad, preferably in the foreign national's home country. The foreign national must show proof of admission into an accredited school, as well as evidence showing the candidate will have the ability to financially support themselves while in the United States, and more importantly, that they intend to depart the United States upon completion of their degrees. When relatively straight-forward, the process can be completed in a few weeks.

However, the current administration's “extreme vetting” policies have increasingly morphed into a series of intense hurdles and barriers to foreign students hoping to study in the United States, resulting in limiting the admission of foreign students to the United States. Students applying for F-1 visas now must present more evidence to satisfy the above-described seemingly simple standard. The policies have also resulted in more visa denials and are gradually resulting in talented foreign nationals seeking educational opportunities outside of the United States. As a point of reference, the Department of State reports that in 2015, it issued 644,233 F-1 visas to international students. In 2017, the number of issued F-1 visas had dropped to 393,573, a 39-percent decrease. Multiple factors contribute to the decline, and the current administration's policies are certainly one of the key causes.

As a result of this heightened scrutiny, many foreign nationals who still want to study in the United States have begun to rely on a second path to obtaining an F-1 status: applying for a change of status while in the United States. This path is often preferred by individuals who come to the United States as visitors, or as the dependents of temporary employees or exchange visitors. Considering the costs of tuition, flight tickets and the risk of not being granted a visa by a U.S. Embassy, it is easy to understand the seeming appeal of a change of status application.

Unfortunately, many applicants are unaware of the complexities when seeking to change status to that of an F-1 student. First, an applicant must file before their authorized status in the United States expires. Second, the start date of the academic program the applicant plans to enroll in must not be more than 30 days past the expiration of the applicant's authorized status at the time of filing. Most applicants are aware of these two steps and usually file their applications correctly.

However, many foreign nationals mistakenly assume that the filing of the application sufficiently protects their rights and status in the United States. As the adjudication and application processing timelines get longer (currently at six to 15 months), applications for change of status are often not approved by the time their respective program start dates come. Schools are required to defer the program start dates, which often means that the applicant must wait for at least a semester before they can officially enroll and commence studies.

More often than not, the foreign national's original authorized status eventually expires before his application for change of status is approved. If an applicant forgets to independently apply for an extension of stay in their non-F-1 status on time, their change of status request is denied, and they are forced to depart the United States. Once outside the United States, they can apply for an F-1 visa at a U.S. consulate, if they are still eligible. However, even the applicants who encounter no timing issues, do not necessarily fare any better because USCIS usually wants to ensure that the extension application is approved prior to approving the change of status. Not to mention that most foreign nationals eventually do need to travel out of the United States, which automatically means that they will need to apply for an F-1 visa at the embassy.

Each application for extension, and each deferral of the program start date reduces the financial incentive change of status applications once offered. From an efficiency standpoint, attempting to change one's status to that of an F-1 student is like a hamster running in its wheel. The heightened adjudication standards nowadays combined with the increasing delays in processing, no longer justify the filing of change of status applications. While visa applications at U.S. consulates are also tough and are increasingly scrutinized, they at least provide a relatively speedy resolution for foreign nationals seeking to study in the United States.

Maria M. Mihaylova is an associate at Klasko Immigration Law Partners and works closely with both corporate and individual clients on a wide range of business and family-based immigration matters. An immigrant herself, Maria is well-attuned to the needs of foreign nationals who are evaluating and planning out their immigration options in the United States.