F1 Stamping while GC Process Going On

[ipoh123]

Hi Guys.. Sorry to post an off topic question here. I will remove it once i get an answer.
I am currently working on H1b and have an approved I140 (PD: Aug 2010). My wife came to the US in March, 2012 on H4 and later converted to F1 to pursue MS in CS. She will complete her course Dec' 13. Now she needs to go to India for her brother’s wedding sometime next year. The question is,
1) Is it better for her to go to India this summer and try to get a F1 stamping? The issue with this option is that I have an approved I-140 which will not look good if they notice it during her interview.
2) Should we wait till next year and go after her course is completed and she has applied for H1b? If next year is anything like this year, H1b might get over in the first few days. Are there any chances anything improving on this front next year that will increase her chances of get a H1b (provided that she can land a job between Dec and Apr'13). If she does not get a H1b then she'll have to go for an F1 interview during OPT, where her odds will be worse than today.

We are pretty torn on this. We talked to a lawyer and she did not do much other than letting us know that our fears of F1 rejection are valid. If she goes to India now and comes back on H4, then she'll have to apply for COS to F1 again after a couple of months and go through the same process all over again next year when she goes for her brother's wedding. I am just thinking if it is better to postpone taking the risk to see if things improve by next year. I was also thinking that if it gets rejected next year she can stay in India and work there till we get a GC. She has prior work ex. in India and had quit a stable job to come to the US. Seeing her go through all this instability is disheartening for me too.
Any thoughts/suggestions from anyone will be appreciated. What would you do in this scenario? Has anyone had a similar dilemma?

[ChampU]

Hi Guys.. Sorry to post an off topic question here. I will remove it once i get an answer.
I am currently working on H1b and have an approved I140 (PD: Aug 2010). My wife came to the US in March, 2012 on H4 and later converted to F1 to pursue MS in CS. She will complete her course Dec' 13. Now she needs to go to India for her brother’s wedding sometime next year. The question is,
1) Is it better for her to go to India this summer and try to get a F1 stamping? The issue with this option is that I have an approved I-140 which will not look good if they notice it during her interview.
2) Should we wait till next year and go after her course is completed and she has applied for H1b? If next year is anything like this year, H1b might get over in the first few days. Are there any chances anything improving on this front next year that will increase her chances of get a H1b (provided that she can land a job between Dec and Apr'13). If she does not get a H1b then she'll have to go for an F1 interview during OPT, where her odds will be worse than today.

We are pretty torn on this. We talked to a lawyer and she did not do much other than letting us know that our fears of F1 rejection are valid. If she goes to India now and comes back on H4, then she'll have to apply for COS to F1 again after a couple of months and go through the same process all over again next year when she goes for her brother's wedding. I am just thinking if it is better to postpone taking the risk to see if things improve by next year. I was also thinking that if it gets rejected next year she can stay in India and work there till we get a GC. She has prior work ex. in India and had quit a stable job to come to the US. Seeing her go through all this instability is disheartening for me too.
Any thoughts/suggestions from anyone will be appreciated. What would you do in this scenario? Has anyone had a similar dilemma?


Here is my PERSONAL opinion.. Travelling and visa stamping for a F1 class visa is a lot easier than H1 visa. As long as the school that she is attending is a legitimate school (Not blacklisted or under the DHS scanner as a OPT issuing factory) , requiring GRE and TOEFL and she has enrollment that is required for any fulltime international student (It used to be 9 credit hours when I went to school), you don't have much to worry about. The questions at the consulate might be about the school, her course and your finances. As long as you can prove that you can support her education, you should be in good shape.

Since H1 is a visa with immigrant intent, the chances of rejection are higher.. There is scrutiny about the company, the nature of the job, its duration, location, prevailing wage in your area, the wages that your employer is paying you..If you feel all these questions have straight answers, you need not worry..

Hope this helps..

[qesehmk]

iph - my own experience - my spouse went from F2 -> H4 -> F1 -> AOS -> GC without any problems. I don't see any risk given your wife already has established intent to migrate. Just be honest and say everything clearly. What is the worst case - she will come back on H4 right?

[ipoh123]

Thank you ChampU and Q for your replies.


What is the worst case - she will come back on H4 right?

yeah it is the dreaded H4. She would have to quit her current part-time job in the university and will not be eligible for OPT unless she successfully does COS to F1 after returning on time only to go back to India next year again(for her brother's wedding ) and facing the same situation.

[qesehmk]

I am reasonably confident that she won't have to lose her job since - she can come back on H4 and then adjust status to F1.

Remember visa is only for entering the country. Status is acquired because of her valid I-20. So as long as she can come back to US, she can always get status. And that's why I am saying that it won't make any sense for the visa officer to deny her F1 visa.


Thank you ChampU and Q for your replies.



yeah it is the dreaded H4. She would have to quit her current part-time job in the university and will not be eligible for OPT unless she successfully does COS to F1 after returning on time only to go back to India next year again(for her brother's wedding ) and facing the same situation.

[ipoh123]

I am reasonably confident that she won't have to lose her job since - she can come back on H4 and then adjust status to F1.

Remember visa is only for entering the country. Status is acquired because of her valid I-20. So as long as she can come back to US, she can always get status. And that's why I am saying that it won't make any sense for the visa officer to deny her F1 visa.

Hmm.. That is not something I knew about. I wish the lawyer was as helpful.
Thank you again!

[gc0907]

Just wondering, you have approved I140 and not her. You don't need to present it during her interview.
I know, there is a question for application if they ever applied for immigrant visa. Is there any place in form where your wife has to answer if spouse has applied for GC?
If there isn't then I doubt there's any reason for the officer to go that deep...

[qesehmk]

You are welcome! I hope you confirm this with lawyer and post the info (either confirmation or denial) so that others can benefit.
Hmm.. That is not something I knew about. I wish the lawyer was as helpful.
Thank you again!

[ipoh123]

Just wondering, you have approved I140 and not her. You don't need to present it during her interview.
I know, there is a question for application if they ever applied for immigrant visa. Is there any place in form where your wife has to answer if spouse has applied for GC?
If there isn't then I doubt there's any reason for the officer to go that deep...

I was under the impression that there is a question along the lines of - "Have you or immediate family member ever applied for immigrant visa?". I am pretty sure about it but can check again.

[ipoh123]

You are welcome! I hope you confirm this with lawyer and post the info (either confirmation or denial) so that others can benefit.

Not sure if i can talk to the attorney again or not as it was a paid consultation ($150 a pop). Though the last time i talked to her, she mentioned that they usually recommend waiting for a couple of months after returning on H4 before applying for a COS to F1 again in case it was denied in India.

[gcq]

Not sure if i can talk to the attorney again or not as it was a paid consultation ($150 a pop). Though the last time i talked to her, she mentioned that they usually recommend waiting for a couple of months after returning on H4 before applying for a COS to F1 again in case it was denied in India.
Try Ron Gotcher's forum. He replies to most of the queries.

[ipoh123]

Try Ron Gotcher's forum. He replies to most of the queries.

Thanks gcq. Is this his forum? http://www.immigration-information.com/forums/forum.php

Seems to have been taken down. Will try again later though.

[superuser]

Hi All,

I am in kind of similar situation. My company has applied for the renewal for my H1B and my wife's H4. She will be in her last semester starting from August/September. We are planning to visit India in June/July to see family members. Will it be problem if we apply for her F1 visa in India given that she will be on F1 for her last semester and H4 renewal is being applied? What will happen if her F1 gets rejected in India?

Thanks.

[gcq]

Thanks gcq. Is this his forum? http://www.immigration-information.com/forums/forum.php

Seems to have been taken down. Will try again later though.

That should be the one.
Another one is Rajiv Khanna's forum http://www.immigration.com/. They even have weekly calls where you can submit questions which will be answered in the call.

[ipoh123]

Hi All,

I am in kind of similar situation. My company has applied for the renewal for my H1B and my wife's H4. She will be in her last semester starting from August/September. We are planning to visit India in June/July to see family members. Will it be problem if we apply for her F1 visa in India given that she will be on F1 for her last semester and H4 renewal is being applied? What will happen if her F1 gets rejected in India?

Thanks.

From what I have gathered so far, the main issue of getting a F1 stamping in India for cases like ours arises when one spouse has displayed immigrant intent - typically through an I140 application - and the other spouse is applying for a non-immigrant visa such as F1. If you have not filed for a I-140, I think you should be fine. Else, your wife can always come back from India on H4 and then COS to F1 for the last semester especially if she does not need to travel outside the country when she is on OPT next year.

[superuser]

Thanks ipoh123 for providing the helpful info. So, if the F1 visa gets denied then she will fall back on H4 and there is no threat to H4. right?