Options after completing dental education on H-4

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10-28-2013, 08:40 PM
Immigo

Options after completing dental education on H-4

Hi - I am working on H1B and have an approved EB2-I I-140 (priority date June, 2011). My wife is studying dentistry on H-4 visa and will be graduating in May, 2014.

To give you a bit of background, I-485 was filed for me (primary) and my wife (dependent) back in 2006. I-485 was declined in 2007 after the underlying I-140 was declined. I left US in 2007 and came back in 2010.

Please can you help evaluate the below options for us:

1) Can my wife apply for COS from H4 to F1 considering that an I-485 was filed for her in the past and considering that she has been mentioned as a dependent in my current I-140. I ask this as I-485 establishes an intent to migrate while COS to F1 implies non-immigrant intent.

2) If she applies for F1 and the COS does not get completed by May 2014 (say it gets completed by June 2014), can she still get the OPT ? I ask this Vermont Center is currently processing I-539 from April 2013.

Thanks in advance for the help.
10-28-2013, 09:27 PM
qesehmk

Immigo - the answer to 1 is absolutely yes since she already possesses a dual intent visa H4.

I do not exactly know #2. But my gut feel is that the answer is NO. But I see No reason why COS wont get completed by May 2014 if you apply now.

All the best!

Quote:

Originally Posted by Immigo

Hi - I am working on H1B and have an approved EB2-I I-140 (priority date June, 2011). My wife is studying dentistry on H-4 visa and will be graduating in May, 2014.

To give you a bit of background, I-485 was filed for me (primary) and my wife (dependent) back in 2006. I-485 was declined in 2007 after the underlying I-140 was declined. I left US in 2007 and came back in 2010.

Please can you help evaluate the below options for us:

1) Can my wife apply for COS from H4 to F1 considering that an I-485 was filed for her in the past and considering that she has been mentioned as a dependent in my current I-140. I ask this as I-485 establishes an intent to migrate while COS to F1 implies non-immigrant intent.

2) If she applies for F1 and the COS does not get completed by May 2014 (say it gets completed by June 2014), can she still get the OPT ? I ask this Vermont Center is currently processing I-539 from April 2013.

Thanks in advance for the help.
10-29-2013, 01:15 AM
gcpursuit

Are you sure about #1, Q? I have been in a similar situation few years back and my attorney told me that H4 to F1 when you had an intent to immigrate was not possible. Though H4 is dual intent visa, F1 is not. I dont have any legal documents to point to but this was what my attorney said at that time.

Quote:

Originally Posted by qesehmk

Immigo - the answer to 1 is absolutely yes since she already possesses a dual intent visa H4.

I do not exactly know #2. But my gut feel is that the answer is NO. But I see No reason why COS wont get completed by May 2014 if you apply now.

All the best!
10-29-2013, 06:33 AM
qesehmk

My spouse did it successfully. That's how I know it.

Besides - if one already holds dual intent visa and has been to the US - what difference does it make to the Dept of State to admit the person on H4 or F1. So I think the said attorney may be wrong on this one.

Quote:

Originally Posted by gcpursuit

Are you sure about #1, Q? I have been in a similar situation few years back and my attorney told me that H4 to F1 when you had an intent to immigrate was not possible. Though H4 is dual intent visa, F1 is not. I dont have any legal documents to point to but this was what my attorney said at that time.
10-29-2013, 08:27 AM
Immigo

Q / gcpursuit - thanks for the inputs. Q - please can you confirm if your spouse had also shown an intent to migrate in the past prior to converting to F1 ? (e.g. in our case, my wife had an I-485 filed back in 2006 which got denied when my I-140/I-485 were denied).
10-29-2013, 08:27 AM
CleanSock

Hi Immigo,
To answer your first question, yes she can change to F1. I myself was in the same situation with my spouse's I140 approved and my name on it. I did COS to F1 this January. My school gave me a questionnaire to fill and send to USCIS wherein I had to write if I would be going back to my country after studies and if so why. You can write anything you wish (property back in India, old parents etc etc). My F1 was approved without any issues.
Another word of advice. You may want to apply through ELIS. When I applied last November, ELIS was faster. I got my approval in January in exactly two months whereas people who had done the regular way (post) were still waiting.

To answer your second question, she can be eligible for OPT as long as she is a full time student for at least two semesters regardless of visa status (as long as she's on a visa that allows her to study). I know many people from my school who took full load of courses in all semesters on H4 and changed to F1 in their second last semester and were eligible to apply for OPT in their last semester.
You may want to go through this link :

http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD

Even though it states the two semesters rule under pre-completion OPT, my school told me the same applies towards post completion OPT too.

One difference while applying for OPT between people who came to the country directly on F1 and those who converted from a different visa within the country is that those who converted from a different visa within the country have to send official transcripts to USCIS. It is not required by people who came here directly on F1.

Converting to F1 from H4 with I140 approved is not a problem. Getting an F1 stamp is a different scenario altogether.

CleanSock

Quote:

Originally Posted by Immigo

Hi - I am working on H1B and have an approved EB2-I I-140 (priority date June, 2011). My wife is studying dentistry on H-4 visa and will be graduating in May, 2014.

To give you a bit of background, I-485 was filed for me (primary) and my wife (dependent) back in 2006. I-485 was declined in 2007 after the underlying I-140 was declined. I left US in 2007 and came back in 2010.

Please can you help evaluate the below options for us:

1) Can my wife apply for COS from H4 to F1 considering that an I-485 was filed for her in the past and considering that she has been mentioned as a dependent in my current I-140. I ask this as I-485 establishes an intent to migrate while COS to F1 implies non-immigrant intent.

2) If she applies for F1 and the COS does not get completed by May 2014 (say it gets completed by June 2014), can she still get the OPT ? I ask this Vermont Center is currently processing I-539 from April 2013.

Thanks in advance for the help.
10-29-2013, 08:43 AM
GCKnowHow

Quote:

Originally Posted by gcpursuit

Are you sure about #1, Q? I have been in a similar situation few years back and my attorney told me that H4 to F1 when you had an intent to immigrate was not possible. Though H4 is dual intent visa, F1 is not. I dont have any legal documents to point to but this was what my attorney said at that time.

I guess your attorney overlook something. My friends wife was in H4 then moved to F1 and now working in OPT while her H1 is filed by her employer.
10-29-2013, 08:55 AM
qesehmk

Looks like this is a quite common scenario - based on others' responses as well.

To answer your question - our GC was filed long back but 485 was yet to be filed when the spouse filed for COS from H4 to F1. However mind you - H it self is dual intent. So IMO having filed 485 etc is not quite pertinent.

If I were you - I would go ahead and try F1 anyway. What's the worst case? She gets denied and has to come back on H4. If she is already in US then she can simply file change of status. I am not 100% sure but I am 95% on that one. She doesn't even go to India to be on F1.

Quote:

Originally Posted by Immigo

Q / gcpursuit - thanks for the inputs. Q - please can you confirm if your spouse had also shown an intent to migrate in the past prior to converting to F1 ? (e.g. in our case, my wife had an I-485 filed back in 2006 which got denied when my I-140/I-485 were denied).
10-29-2013, 07:36 PM
Immigo

Thanks everyone for your inputs. We plan to go ahead and apply for COS from H4 to F1. The plan is also to find an H1B sponsor - hopefully, H1B lottery next year will not be an issue. My wife does not plan to travel outside US till October 2014. Therefore, we would not need to apply for F1 visa.

The ongoing political drama apart - its a shame that we have to go through all this due to the broken immigration system which has imposed arbitrary country based limits in employment based GC process.
10-30-2013, 12:25 AM
gcpursuit

Quote:

Originally Posted by GCKnowHow

I guess your attorney overlook something. My friends wife was in H4 then moved to F1 and now working in OPT while her H1 is filed by her employer.

Hhmmm.. I am out of words here.. Things would have been different if we had done that. I dont know how he could misguide us. We paid a lot of money :mad:. He runs one of the immigration forums, used to answer question from everyone on the forum and I trusted his opinion.

For whatever its worth, he did say that changing to F1 after filing 485 was the problem. I-140 approved for spouse was not the issue. That's how I understood it.

Did anyone have COS to F1 approved after filing 485?

I agree with Q. The worst thing that could happen is you will be where you are now. Let us know how it goes. Good luck.
10-30-2013, 07:23 AM
CleanSock

Yes it is true that you cannot have an intent to immigrate for F1 as F1 is a non immigration intent visa. That's why if someone is on F1 and they file for I485, their F1 status becomes void immediately. That said, there is no way they can prove that you have the intent. Your employer could have initiated your GC process but that doesn't mean you want to immigrate and be here ultimately. Many people don't care about GC in process and leave after few years of work experience.

Quote:

Originally Posted by gcpursuit

Hhmmm.. I am out of words here.. Things would have been different if we had done that. I dont know how he could misguide us. We paid a lot of money :mad:. He runs one of the immigration forums, used to answer question from everyone on the forum and I trusted his opinion.

For whatever its worth, he did say that changing to F1 after filing 485 was the problem. I-140 approved for spouse was not the issue. That's how I understood it.

Did anyone have COS to F1 approved after filing 485?

I agree with Q. The worst thing that could happen is you will be where you are now. Let us know how it goes. Good luck.
10-30-2013, 02:30 PM
GhostWriter

Immigo, GCpursuit - I can only try to answer the first question below and my answer is different (if you plan to gor F1 stamping later) from what others have provided you above. H4 to F1 is simple if Green card process (specifically I-140 in which dependent is declared) has not been filed. If GC process has been started and I-140 has been filed and you have listed your spouse as dependent then that indicates an intent to immigrate. H4 is dual intent but F1 is strictly non immigrant visa. So the chances of F1 being denied when your wife goes for stamping increase if her spouse (you) have filed I-140. My lawyer also advised against F1 stamping for my wife and I was also confused and did a bit of research a few years ago. Based on the experiences that people in similar situation who went for F1 stamping (with GC in process) had posted I found a split verdict on F1 denial (so there were lots of cases where F1 was denied because spouse's GC application was in process). The percentage of denials might not have been 50% but were high enough. My wife had moved from H4 to F1 through change of status before i filed my GC application but F1 was not stamped. We had to travel to India before her degree was finished and we had to decide if she should get F1 stamped or H4 stamped. She had an approved F1 and F1 clearly had the benefit of OPT but we decided to go for H4 stamping to keep it safe. The risk was F1 denial and then the denial causing complication in GC processing. This is the reason GCpursuit's lawyer has advised against it.

Quote:

Originally Posted by Immigo

Hi - I am working on H1B and have an approved EB2-I I-140 (priority date June, 2011). My wife is studying dentistry on H-4 visa and will be graduating in May, 2014.

To give you a bit of background, I-485 was filed for me (primary) and my wife (dependent) back in 2006. I-485 was declined in 2007 after the underlying I-140 was declined. I left US in 2007 and came back in 2010.

Please can you help evaluate the below options for us:

1) Can my wife apply for COS from H4 to F1 considering that an I-485 was filed for her in the past and considering that she has been mentioned as a dependent in my current I-140. I ask this as I-485 establishes an intent to migrate while COS to F1 implies non-immigrant intent.

2) If she applies for F1 and the COS does not get completed by May 2014 (say it gets completed by June 2014), can she still get the OPT ? I ask this Vermont Center is currently processing I-539 from April 2013.

Thanks in advance for the help.
10-30-2013, 06:54 PM
CleanSock

GhostWriter

I agree with you on the visa stamping part. With the dependent's name on I140, getting an F1 stamp will be hard. I myself am not leaving the country because of the same situation. Doing a COS from H4 to F1 from within the country in the same situation is a different scenario. It's not as difficult to do.

CleanSock

Quote:

Originally Posted by GhostWriter

Immigo, GCpursuit - I can only try to answer the first question below and my answer is different (if you plan to gor F1 stamping later) from what others have provided you above. H4 to F1 is simple if Green card process (specifically I-140 in which dependent is declared) has not been filed. If GC process has been started and I-140 has been filed and you have listed your spouse as dependent then that indicates an intent to immigrate. H4 is dual intent but F1 is strictly non immigrant visa. So the chances of F1 being denied when your wife goes for stamping increase if her spouse (you) have filed I-140. My lawyer also advised against F1 stamping for my wife and I was also confused and did a bit of research a few years ago. Based on the experiences that people in similar situation who went for F1 stamping (with GC in process) had posted I found a split verdict on F1 denial (so there were lots of cases where F1 was denied because spouse's GC application was in process). The percentage of denials might not have been 50% but were high enough. My wife had moved from H4 to F1 through change of status before i filed my GC application but F1 was not stamped. We had to travel to India before her degree was finished and we had to decide if she should get F1 stamped or H4 stamped. She had an approved F1 and F1 clearly had the benefit of OPT but we decided to go for H4 stamping to keep it safe. The risk was F1 denial and then the denial causing complication in GC processing. This is the reason GCpursuit's lawyer has advised against it.
05-09-2014, 07:38 PM
Immigo

Hi - my wife's H4 to F1 COS was approved today.

Timeline - applied on January 16, 2014 via Elis and was approved on May 9, 2014. Had called to expedite around April 20 (i.e. after 3 months which is greater than processing time of 2.5 months), but the request was denied. Had also sent an email from within Elis to expedite but did not help.

Putting this information to highlight the scenario that H4 to F1 COS can be approved even if I-485 has been denied in the past (showing intent to migrate).