As many of our clients are aware, lengthy USCIS processing times continue to greatly impact access to important immigration benefits. In particular, H-4 dependents who have aged out and filed a change of status application to move to F-1 status are experiencing processing times upwards of 12-14 months. For those who were already enrolled in school when the change of status to F-1 was filed, this can create additional hurdles if the F-1 is not approved before their graduation date. This article seeks to provide guidance to those affected by these particular challenges.

Background:

As background, an H-4 dependent child “ages out” after they reach 21 years of age. When this happens, most H-4 dependent children file to change status to F-1, in order to remain in the U.S. and continue attending school. Since most people begin college directly after high school graduation, at the age of 18, this change of status often coincides with the beginning of the student’s last year of undergraduate school. While the student can continue to take classes and pursue their program of study while the H-4 to F-1 change of status is pending, unique challenges can arise if the change of status is not approved before the student’s graduation date.

Namely, without holding approved F-1 status, the student will not be eligible to participate in Optional Practical Training (OPT) following graduation. OPT is an important benefit available to F-1 holders who complete at least one year as a full-time student which allows them to gain practical work experience in their field following graduation. F-1 students are granted 12 months of OPT, with an additional 24 months for those who graduate with a degree in a STEM subject. This is a total of potentially three years of work authorization the affected student will not have access to if the F-1 change of status is not approved prior to the graduation date.

Further, should the student wish to remain in the U.S. and continue pursuing higher education by enrolling in a master’s degree program, they will find themselves in limbo, since the original F-1 application was filed for their bachelor’s degree course of study only. Since current processing times are extraordinarily lengthy, these challenges are now becoming all too common and can be tough to navigate. ILBSG is here to help.

Next Steps:

While there is not currently any relief available for those who graduate before being granted F-1 status in terms of access to OPT, a student can continue to pursue higher education even if the F-1 has not been approved by the time the bachelor’s degree program is complete. In order to enroll in a master’s degree program, ILBSG advises a two-step approach:

First, a student in this situation should obtain an I-20 for the new master’s degree program and send a copy to USCIS, with a request to amend and update the original H-4 to F-1 change of status application with the new program of study. This request should highlight the extraordinary processing delays and ask USCIS to base the F-1 approval on the new program of study instead since the original program requested has now been completed. We recommend using an immigration attorney to navigate this step and draft the request since this is not a standard process for USCIS.

Next, we advise concurrently filing a second F-1 application based on the new program of study. This is to ensure the affected student does not experience any lapse in status, in the event USCIS fails to adjudicate the first application to an approval. This will be a bridge application scenario, but this is the best course of action to ensure maintenance of status and eventual approval.

If the student receives an F-1 approval prior to the second-degree program’s end date and completes one year in full-time F-1 status before graduation, the student will be able to take advantage of OPT and STEM OPT (if appliable) at that time.

If the F-1 is approved but the student does not complete one year in approved F-1 status before graduating, the student will again be ineligible for practical training following graduation. At that point, to be able to work in the U.S. after graduation, the student would need to be sponsored for an H-1B or other employment-based visa classification.

Call to Action:

We recognize that lengthy adjudication and processing delays continue to greatly impact our clients. For those that have aged out of H-4 and filed to change status to F-1, these delays have an even more significant impact. In addition to losing H-4 eligibility, dependent children who have aged out are also ineligible to file derivative green card applications. This means, in most cases, the dependent child must forge a path in the U.S. on their own. In order to do that, changing status from H-4 to F-1 to pursue a U.S. degree is often the best option. However, when lengthy USCIS delays impact this process and result in the student missing out on OPT, the affected student suffers yet another consequence of having aged out. OPT is critical to gaining practical work experience and, eventually, finding an employer to file an employment-based nonimmigrant and/or immigrant petition on their behalf. These delays, and their deeply unfair consequences, cannot continue.

It is imperative that Congress acts to streamline this process, promote government efficiency, and resolve these devastating immigration consequences. So far, USCIS has done little to alleviate the burdens created by their own extreme delays. In order to motivate Congress to act, we recommend sending a letter or email to your representatives and senators pressuring USCIS to resolve these delays and offer some relief to those affected. Letters sharing personal stories and how these delays are affecting people can have a great impact in motivating elected officials to act. You can find your representative here and your senator here. Once you find your representative or senator, you can click on their website and find their contact information and ways to contact them. We encourage our clients to take action, as this can be an important catalyst for change.

In the meantime, ILBSG remains dedicated to helping our clients navigate these difficult challenges. If you need assistance in resolving issues related to lengthy adjudication or processing delays, reach out to an ILBSG attorney today. We are here to help you get the right advice.

Aging Out H-4 f-1 H-4 H-4 Dependents immigration OPT Optional Practical Training student visa