B2 to F1 - HELP!!

[roychoudhury@houston]

I am posting on behalf of my friend. He came to US on JUNE 2016 on B2 visitor's visa and duly went back before the I-94 expiry on Nov 2016. He again came back on the same Visa (10yr multi entry) on Dec 9 2016. In March 2017 he appeared for TOEFL and got I-20 from a local university. He applied for F-1 Visa on April 2017. His latest I-94 shows an expiry of Jun 8th 2017. While he was waiting for the F-1 the DSO informed him to apply for an extension of B-2 as the rules have changed on May 10th. So on September 18th the USCIS received the application for extension of B2. In December USICIS asked for an RFE about whether the B2 is still valid or whether he applied for an extension. He duly forwarded the receipt of the Sept 2017 application for B2 extension
Here is the situation as of present
His school start date according to the latest I-20 was Jan 5th- the school says he can join as late as Jan 12th
He is yet to receive the F-1 - the status only says - RFE response received

So just curious what happens next - Is he already out of status - A b-2 extension would only have been till Dec 8th - Jun 8the + 6months = Dec 8th
Will he still wait for the response from USCIS regarding F-1 before taking any decision.
With all the 30 day rule - is it still spossible that USCIS will grant the Visa and he can continue to stay?

TIA

[inadmissible]

His B-2 extension was not timely filed, was it?

[roychoudhury@houston]

His B-2 extension was not timely filed, was it?

Supposedly before May 10th you can stay in US without filing an extension as long as you have a existing AOS petition filed. So he was in that gap - and the RFE states that too. So probably filing it in Sept 17 was OK as the B2 extension is still pending

[inadmissible]

Supposedly before May 10th you can stay in US without filing an extension as long as you have a existing AOS petition filed. So he was in that gap - and the RFE states that too. So probably filing it in Sept 17 was OK as the B2 extension is still pending

You said that his I-94 expired June 8th 2017, and he applied for an extension of status on September 18th 2017. Therefore, the application for extension of status is not timely

[roychoudhury@houston]

You said that his I-94 expired June 8th 2017, and he applied for an extension of status on September 18th 2017. Therefore, the application for extension of status is not timely

That is true - but he had an exiting AOS application for F-1. When he applied in April an existing AOS application is good enough to stay untill the application is rejected/approved. A May 10th rule changed that - which forces you to be on B-2 while the F-1 AOS is processing. Since he applied before May 10th - he fell into the gap. The school DSO informed him of the rule late August and hence the application was filed mid September.

[inadmissible]

That's not how it works. A pending change of status application doesn't prolong his lawful status for the purpose of applying for an extension of status. He was not in status when he applied for an extension of status, so his application to extend status will be denied

[roychoudhury@houston]

That's not how it works. A pending change of status application doesn't prolong his lawful status for the purpose of applying for an extension of status. He was not in status when he applied for an extension of status, so his application to extend status will be denied

Where I am getting confused here is
1. If the B-2 was extended it would have through Dec 8th 2017. Its 8th Jan today and the USCIS status still shows case received.
2. The F-1 is still pending.
He is in a limbo as to what to do.

So if his application is denied how soon will he have to leave US?

[roychoudhury@houston]

Avery Interesting update.
My friend just got off the phone with an immigration lawyer and explained the entire situation. The lawyer suggested that he apply for a B-2 extension again. And I thought you can only file B-2 extension only once - what am I missing here

[inadmissible]

So if his application is denied how soon will he have to leave US?

179 days from the decision date of the timely-filed non-frivolous application to change or extend status. Beyond that, he will be subject to the 3 year bar

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Avery Interesting update.
My friend just got off the phone with an immigration lawyer and explained the entire situation. The lawyer suggested that he apply for a B-2 extension again. And I thought you can only file B-2 extension only once - what am I missing here

Makes no sense. He is not in lawful status, so he can't file an extension of status

[roychoudhury@houston]

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Makes no sense. He is not in lawful status, so he can't file an extension of status[/QUOTE]

Thanks. But just for my knowledge - Can anyone apply for a 2nd B-2 extension while a decision is pending for the first B-2 extension application

[inadmissible]

Can anyone apply for a 2nd B-2 extension while a decision is pending for the first B-2 extension application

Yes, but only if they are in lawful status

[newacct]

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Makes no sense. He is not in lawful status, so he can't file an extension of status

Thanks. But just for my knowledge - Can anyone apply for a 2nd B-2 extension while a decision is pending for the first B-2 extension application[/QUOTE]

From my understanding, someone can apply for a second EOS/COS when a first EOS/COS is pending and they are already out of status -- but it will depend on the first EOS/COS being approved. If the first EOS/COS is denied, the second one would also be denied since there was no status at the time the second EOS/COS was filed.

In this case, the B2 EOS/COS was filed when there was already an F1 COS pending, but the B2 EOS/COS can't depend on the F1 COS, because the goal is not to change into B2 -- it's the other way around -- the goal is to change into F1, and the F1 COS depends on a B2 EOS because USCIS policy requires the person to be in status 30 days before the new start date of the F1 (when the start date is pushed back due to the COS taking too long) when doing a COS from B2 to F1. Since the F1 COS depends on the B2 EOS, the B2 EOS must be filed before B2 status expired. The B2 EOS here was filed late (after B2 status expired), and USCIS is likely to reject it. The F1 COS will also be denied because, without a B2 EOS approved, you won't have been in B2 status 30 days before the new start date of the F1.