H4 to F1 COS - Spouse switching job

Hi,

I am totally confused right now, I am planning to apply for Change of Status from H4 to F1 in a week's time. The issue is my husband got a new job and he is going to apply for his transfer of H1 to the new employer along with my H4 transfer. In this scenario, will this change effect my COS ? Or should I wait till he gets his new I797 that is with his new employer? I cannot afford to wait as COS takes long time and I want it by May.

Should his new employer file my H4 along with his H1? If they do so, what will be my status? H4 or F1?

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Originally Posted by ygvc27

Hi,

I am totally confused right now, I am planning to apply for Change of Status from H4 to F1 in a week's time. The issue is my husband got a new job and he is going to apply for his transfer of H1 to the new employer along with my H4 transfer. In this scenario, will this change effect my COS ? Or should I wait till he gets his new I797 that is with his new employer? I cannot afford to wait as COS takes long time and I want it by May.

Should his new employer file my H4 along with his H1? If they do so, what will be my status? H4 or F1?

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Whatever gets approved later will be your status. So better do H4 first and then convert to F1.

Usually people change from H4 to F1 for CPT/OPT. According to the rules, you need to be on F1 for 2 semesters before you can get CPT. So most of the people want it before August. I am not sure why you would need it by May. But in case getting it in May is a necessity, then you might want to think about when your current H4 is expiring.

I will share my understanding with you (90% confident). But please talk to lawyer if you are still concerned.

I think your status is derivative status H4 in this case.

When you become F1 you are the primary and are no longer derivative. So if you become F1 then I think you don't go back to H4 unless you opt for it or F1 expires.

If you do not apply for F1 then your husbands company doesn't need to even apply for your H4 since you are derivative and will automatically be in status as long as your husband is in status and your H4 is unexpired.

So if I were you I would go ahead and apply for COS to F1 without waiting or caring for your husbands H1 renewal/transfer. If your F1 is denied then you may still have some time on your unexpired H4. But if your H4 is expiring before May then it may make sense to extend H4 and then COS to F1.

Quote:

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Originally Posted by ygvc27

Hi,

I am totally confused right now, I am planning to apply for Change of Status from H4 to F1 in a week's time. The issue is my husband got a new job and he is going to apply for his transfer of H1 to the new employer along with my H4 transfer. In this scenario, will this change effect my COS ? Or should I wait till he gets his new I797 that is with his new employer? I cannot afford to wait as COS takes long time and I want it by May.
Should his new employer file my H4 along with his H1? If they do so, what will be my status? H4 or F1?

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You don't need a fresh H-4 extension every time your husband changes his job. If you have H4 approval which holds valid for a year or two, you can try to avoid H-4 extension along with H-1.

As Jagan said, if suppose you do both F-1 and H-4, whichever approved second in the queue will be your status.

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Originally Posted by qesehmk

I will share my understanding with you (90% confident). But please talk to lawyer if you are still concerned.

I think your status is derivative status H4 in this case.

When you become F1 you are the primary and are no longer derivative. So if you become F1 then I think you don't go back to H4 unless you opt for it or F1 expires.

If you do not apply for F1 then your husbands company doesn't need to even apply for your H4 since you are derivative and will automatically be in status as long as your husband is in status.

So if I were you I would go ahead and apply for COS to F1 without waiting or caring for your husbands H1 renewal/transfer.

But as I said - I am not entirely sure of this. I just vaguely remember the times when my wife was exactly in your situation and we did a COS for her to F1. But I never had to transfer my H1 .... so that's the difference. But I don't think that matters.

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Q,

As far as I think it is the later that takes precedence. I was in a similar situation when my wife was applying for COS.
We actually asked employer to file in premium in Feb and got approval by March 1st week. With my H1 approval my wife also got H4 approval in 15 days. Then we just filed COS for F1 and it was approved by June.

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Originally Posted by Kanmani

You don't need a fresh H-4 extension every time your husband changes his job. If you have H4 approval which holds valid for a year or two, you can try to avoid H-4 extension along with H-1.

As Jagan said, if suppose you do both F-1 and H-4, whichever approved second in the queue will be your status.

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Kanmani is correct.

If you have H4 that is valid for another 6 months then you should be good. You F1 COS reply should be back before that. If it is approved well and good and in case it is rejected then you do not go out of status. The important thing to remember is that you need to have sufficient time left on your current H4 so that your COS decisions comes before your current H4 expires.

deleted wrong info.

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Originally Posted by qesehmk

jagan

If what you say is true then YG should simply not file for H4 at all and simply do a COS.

Her filing H4 is completely unnecessary. Just in case F1 is denied she will always be in status by virtue of her derivative status tie to husband's.

Right?

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Q,

I do not know about derivative status.

As far as I know if your H4 expires, and then F1 is denied, then you are out of status from the day the F1 got denied.
Recently a friend ran into this and the spouse had to go to India immediately to avoid the out of status days being counted.

deleted wrong info..

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Originally Posted by qesehmk

I am pretty sure that they made an unnecessary trip jagan.

If the primary was in good status then an expired H4 doesn't matter.

p.s. H4 and F2 are derivative status. If for whatever reason corresponding H1 and F1 are revoked then the H4 and F2 respectively also lose status immediately. On the other hand H4 and F2 continue their status as long as corresponding H1 and F1 are in status.

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Q,

I am afraid that will lead to out status . Just like H1, the status of the H-4 is also I-94 dependent.

H1 extension approval , by NO means support the dependent's status . H-4, when expired if not extended will lead to out of status no matter what .

I am sure about it.

Quote:

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Originally Posted by Kanmani

Q,

I am afraid that will lead to out status . Just like H1, the status of the H-4 is also I-94 dependent.

H1 extension approval , by NO means support the dependent's status . H-4, when expired if not extended will lead to out of status no matter what .

I am sure about it.

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Kanmani you are right. I am definitely confusing something here. I found numerous source on web that confirm that it is a SERIOUS problem to stay on expired H4.

However when one is switching jobs - if the H4 has significant time remaining then H4 doesn't need to be extended immediately.

Myself H1b and wife's H4 visa/I-94 expire on May/1st/2014. I’m applying for H1 and H4 extension together in premium processing by March/20/2014

Spouse is currently enrolled in school on h4 status, going to complete her studies by dec/2014
Later on my spouse is going to apply for H4 to F1 change of status on April/1st/2014 , for Fall semester Aug/25/2014(Fall semester) and I -20 date is Aug/2014.


On May/02/2014 what will be my spouse status h4 or f1 ?, if both h4 extension and h4 to f1 cos get approved

On Aug/25/2014 what will be my spouse status h4 or f1 ? , if both h4 extension and h4 to f1 cos get approved

Do I need to wait for h1b/h4 extension approval before applying for spouse h4 to f1 change of status?

What will be best step to follow so that she can get f1 status by Aug/2014 without leaving country

Hi,

I am in same case as you. Did you ever go ahead with your plan? Please share your experience.