F1 stamping after I-140 approved

[ipoh123]

Hi, I am currently pursuing my MBA on F1 status. Before starting my MBA I worked in the US for 6yrs. A green card was application was filed on my behalf by my previous employer, and I had an approved I-140. Last year, I got my status changed from H1 to F1 (I did not request my I-140 to be cancelled while changing my status to F1). I am planning to visit India this December and get my F1 visa stamped. Now the DS160 application is asking whether I had ever applied for an immigrant visa. I was wondering if I should tell the truth, or if I can hide it and just say 'No'. If I am telling the truth, what can I write in the box for explaining the situation? Can I just say that I changed my mind during the insanely long time it takes to get a green card? Will that affect my i-140 application?

Please let me know you thoughts. Thanks in advance.

[manubhai]

My reply is going to be a little different than sports'.

1. I believe you MUST consult an attorney for this. F1 is NOT dual intent. You have the biggest marker for an intent to settle in US - an approved I-140.
2. As far as I know, DS-160 is NOT asking you about a "visa". It is asking you about an "immigration petition". Specifically:

>> Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services? <<

If my assumption is correct, then the answer in your case is a clear "YES". It is immaterial whether or not you have applied for adjustment of status (485) after the immigration petition has been approved.

Sports' point #1 above is worth repeating and quoting:
"1. Never ever lie on immigration forms. It will come back to bite you big time."

If you learn something new on this from an attorney that is different from my assumption above, please let us know.

[seattlet]

My reply is going to be a little different than sports'.

1. I believe you MUST consult an attorney for this. F1 is NOT dual intent. You have the biggest marker for an intent to settle in US - an approved I-140.
2. As far as I know, DS-160 is NOT asking you about a "visa". It is asking you about an "immigration petition". Specifically:

>> Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services? <<

If my assumption is correct, then the answer in your case is a clear "YES". It is immaterial whether or not you have applied for adjustment of status (485) after the immigration petition has been approved.

Sports' point #1 above is worth repeating and quoting:
"1. Never ever lie on immigration forms. It will come back to bite you big time."

If you learn something new on this from an attorney that is different from my assumption above, please let us know.

My 2 cents

An employee need not know that an I140 was filed for him. He would have signed a document specifying that he is OK to file an I140 but the
employer need not share any details reg the I140 with him (whether it is filed, it was approved / denied, approval petition etc). If the employee wants he can use FOIA to find these out but other than that, he can pretty much be in the dark. Granted that most US based organizations provide a copy but that is not required by law and most desi folks may not even provide it.

Which brings me to the next question. When you apply for a visa such as F1, unless u file 485, there really cannot be any intent to immigrate, because the employee has no idea about the outcome for the prior stages or even if PERM/ 140 was filed / successful. To me this is a classic case of plausible deniability.

Only 485 can be a surely classified as an immigrant petition for Visa purposes since it is filed by the employee himself. Just my take on this

[manubhai]

My 2 cents

An employee need not know that an I140 was filed for him. He would have signed a document specifying that he is OK to file an I140 but the
employer need not share any details reg the I140 with him (whether it is filed, it was approved / denied, approval petition etc). If the employee wants he can use FOIA to find these out but other than that, he can pretty much be in the dark. Granted that most US based organizations provide a copy but that is not required by law and most desi folks may not even provide it.

Which brings me to the next question. When you apply for a visa such as F1, unless u file 485, there really cannot be any intent to immigrate, because the employee has no idea about the outcome for the prior stages or even if PERM/ 140 was filed / successful. To me this is a classic case of plausible deniability.

Only 485 can be a surely classified as an immigrant petition for Visa purposes since it is filed by the employee himself. Just my take on this

When you say "Just my take on this", I understand you are only trying to add another perspective on the issue. All good up till then.

But my problem, and the reason I chose to login after a VERY long time and reply to this question is particular, is that I truly believe ipoh needs to consult an attorney. And I hate to say it, but if I were him/her, I won't visit India in this situation.

Here's why:
1. DS-160 is NOT asking about a "visa".
It is NOT asking about an "approved" visa.
It is NOT asking about some generic "intent to immigrate".

It is asking, very specifically, about whether a *petition* was *filed*. Pasting the exact question from DS-160 again:

Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services?

For ipoh, the correct answer to that question is "Yes".

2. As far as I know - The visa officer has an obligation to deny an F1 visa if an intent to change status is evident. The VO does not have a subjective decision to make. He has zero choice.

3. "Plausible deniability" - You are only trying to help and it is rude of me to pick on your choice of words. But I am convinced that sitting in India with a denied visa, after you've spent years here, that phrase doesn't help. It just doesn't. May be in US... in a US court of law... but not in India.

ipoh - Seriously, talk to an attorney who really understands this (F1 + stamping) stuff. And try to rethink your vacation if you still have doubts. Sorry for bringing the bad news. I feel obligated to do it given what I know and have seen with a few friends. Best!

[seattlet]

When you say "Just my take on this", I understand you are only trying to add another perspective on the issue. All good up till then.

But my problem, and the reason I chose to login after a VERY long time and reply to this question is particular, is that I truly believe ipoh needs to consult an attorney. And I hate to say it, but if I were him/her, I won't visit India in this situation.

Here's why:
1. DS-160 is NOT asking about a "visa".
It is NOT asking about an "approved" visa.
It is NOT asking about some generic "intent to immigrate".

It is asking, very specifically, about whether a *petition* was *filed*. Pasting the exact question from DS-160 again:

For ipoh, the correct answer to that question is "Yes".

2. As far as I know - The visa officer has an obligation to deny an F1 visa if an intent to change status is evident. The VO does not have a subjective decision to make. He has zero choice.

3. "Plausible deniability" - You are only trying to help and it is rude of me to pick on your choice of words. But I am convinced that sitting in India with a denied visa, after you've spent years here, that phrase doesn't help. It just doesn't. May be in US... in a US court of law... but not in India.

ipoh - Seriously, talk to an attorney who really understands this (F1 + stamping) stuff. And try to rethink your vacation if you still have doubts. Sorry for bringing the bad news. I feel obligated to do it given what I know and have seen with a few friends. Best!

Everyone has to do what is best for himself / herself. In my opinion the person who posted the question already knew that he has to go to an attorney for expert advice but still wanted to explore. I just provided my opinion. It can be seen as bad advice by you but i cant be bothered about that.

[Spectator]

seattlet,

I agree with manubhai.

If the question is:

Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services?

then it is asking about an I-130, I-140, I-526 or I-360.

The word "petition" has a very specific meaning in the INA. A person or organization petitions for the beneficiary. An employer petitions for the employee (I-140). A US Citizen or LPR petitions for a family member (I-130). In some instances, the petitioner and beneficiary may be the same person.

I-130 | Petition for Alien Relative | Form Fee: $420
I-140 | Immigrant Petition for Alien Worker | Form Fee: $580
I-360 | Petition for Amerasian, Widow(er), or Special Immigrant | Form Fee: $405. See Special Instructions.
I-526 | Immigrant Petition by Alien Entrepreneur | Form Fee: $1,500

That is not an exhaustive list of immigrant petitions, but covers the majority. See this page for descriptions that are Petitions or Applications.

An I-485 or CP equivalent is an "application".

I-485 | Application to Register Permanent Residence or Adjust Status | Form Fee: $985. (Add $85 biometric fee for a total of $1070

Even the language "has anyone" is quite telling. It says that the person themselves generally could not have filed the petition referred to.

The argument that a person would not know whether an I-140 had been filed on their behalf is completely ridiculous when used as a generalization. The employee doesn't need to know the details of the documentation to know that one has been filed. They don't need to know whether it is pending, denied or approved to answer the question.

[ipoh123]

Thanks a lot for your answers, Sportsfan, Manubhai, Seattlet and Spec.
I had been holding back on consulting with an attorney as I had a really bad and expensive experience last year (for H1 - F1), with someone posing as an attorney in NY. But that's a story for another day.
My question is - I'd have completed 3/4th of my program with a huge debt to payback, by the time I go to India in Dec. How likely is it for the VO to cancel my visa just because a I140 was applied for me 4 yrs back? My intentions while applying for GC were to stay with the company and work for the foreseeable future (beyond 6yrs of H1). However, clearly those intentions have changed as I am no longer with the company. My understanding is that these issues/situations arise because the system is broken and was hoping that the VO will act according to the spirit of law and not the letter of law. Just wanted to know if there is anyone out there who has, or knows someone who has, been through a similar situation.

Also, if anyone knows a reliable and reasonable attorney, please let me know.

[manubhai]

Thanks a lot for your answers, Sportsfan, Manubhai, Seattlet and Spec.
I had been holding back on consulting with an attorney as I had a really bad and expensive experience last year (for H1 - F1), with someone posing as an attorney in NY. But that's a story for another day.
My question is - I'd have completed 3/4th of my program with a huge debt to payback, by the time I go to India in Dec. How likely is it for the VO to cancel my visa just because a I140 was applied for me 4 yrs back? My intentions while applying for GC were to stay with the company and work for the foreseeable future (beyond 6yrs of H1). However, clearly those intentions have changed as I am no longer with the company. My understanding is that these issues/situations arise because the system is broken and was hoping that the VO will act according to the spirit of law and not the letter of law. Just wanted to know if there is anyone out there who has, or knows someone who has, been through a similar situation.

Also, if anyone knows a reliable and reasonable attorney, please let me know.

Your question...

I'd have completed 3/4th of my program with a huge debt to payback, by the time I go to India in Dec. How likely is it for the VO to cancel my visa just because a I140 was applied for me 4 yrs back?

... is why I ask you to consult an attorney. Most people here, including myself, will have opinions. Even an attorney will have "just an opinion", but it will - hopefully - be based on his experience with past cases - hopefully - of Indians getting F1 stamps in consulates in India.

Given your experience with an attorney, I'll add another thing - Be prepared to give away $200-400 and you'll end up coming out feeling better. And you don't need a "RELIABLE" attorney for this task. RELIABLE attorney is the one that fills in the forms perfectly, submits it on time and keeps you informed. What you need is an attorney that has a big number of cases as his experience to use when answering this question of yours. For example, and some will disagree with me on this, pick Murthy. With what I remember about her organization from about 3-4 yrs ago, I had to tell them what my question was about first; THEN they gave me an appointment with the person who was knowledgeable about my area of concern (after I gave them enough dollars). When the call finally happened, there was another attorney on the call with that main attorney. That's exactly what you need, IMHO.

Listen to the attorney, not me, so I'll add my layman opinion -
1. Don't mention debt in the interview. It means you have more of a reason to stay back and get a job in US.
2. You are 3/4th done. Finish the darn thing. Get an H1 approved. Then visit. Yes, its sad you won't go. That's the price some of us pay to avoid the uncertainty that comes with this process. Again, attorney will tell better.

BTW - Please come back here and enlighten us with what the attorney said. We'll all learn thanks to the dollars you spend!!

[ipoh123]

So based on advice from this forum, I spoke with a senior attorney from Murthy's firm yesterday. He made it clear that I will not get a F1 visa if I went to India in my current situation. The only way I might get a visa would require me to withdraw my I140. I don't want to do that as I need my I140 for getting my H1 extended after I graduate(have completed initial 6 yrs of H1b). This leads me to the second question:

The attorney said there are cases where a I-140 was revoked and the applicant was not aware of it because the online status checking tool is not always updated. Also, apparently there is no way for me to find out the status from USCIS directly (apparently only the employer has right of information on I140). My case status online shows that the last activity was on Dec 2010, when the approval notice was sent. My question now is how worried should I be about the case getting cancelled and me not knowing about it? The lawyer says it happens in 20-30% of cases. Have any of you guys seen any such cases? Do you think there is any way for me to find out before the status of the I140 before I graduate?

[qesehmk]

Q1. I assume you didn't file your 485, correct?
Q2. Can you file it now (is the date current)?
Q3. Looks like your former employer is more than willing to continue GC processing after you graduate. Correct?

As per whether you will get a visa in India- I don't think it is impossible. My opinion about the question is that it is meant to prevent people from India to go to US prior to approval of their petition. It is one more filter to avoid freeloaders. That's about it.

So again my "opinion" is - if your personal situation is critical - then take this risk. I think there is at least 50% chance you will get stamped even with the 140. The key always lies with ability to fund your education and not become a freeloader. It looks like your have earned enough to sustain yourself through your MBA.

So based on advice from this forum, I spoke with a senior attorney from Murthy's firm yesterday. He made it clear that I will not get a F1 visa if I went to India in my current situation. The only way I might get a visa would require me to withdraw my I140. I don't want to do that as I need my I140 for getting my H1 extended after I graduate(have completed initial 6 yrs of H1b). This leads me to the second question:

The attorney said there are cases where a I-140 was revoked and the applicant was not aware of it because the online status checking tool is not always updated. Also, apparently there is no way for me to find out the status from USCIS directly (apparently only the employer has right of information on I140). My case status online shows that the last activity was on Dec 2010, when the approval notice was sent. My question now is how worried should I be about the case getting cancelled and me not knowing about it? The lawyer says it happens in 20-30% of cases. Have any of you guys seen any such cases? Do you think there is any way for me to find out before the status of the I140 before I graduate?

[gcq]

I think in lines with what lawyer said. F1 is a non-immigrant visa. An approved I-140 shows an intend to immigrate. Most likely visa will be rejected by the consulate. That is the very purpose they have this question in the form.

[ipoh123]

Thanks for your reply, Q. Below are the answers to your questions.

Q1. I assume you didn't file your 485, correct?
No, 485 was not filed.
Q2. Can you file it now (is the date current)?
PD is August 2010. So it's not current.
Q3. Looks like your former employer is more than willing to continue GC processing after you graduate. Correct?
No idea what my former employer intends to do right now. They were a small company (about 100 employees, not consulting/staffing) and were acquired by a bigger company right before I left in 2013. FWIW, during the exit interview, when they asked me if I'd like to come back and work for them after my MBA, I had said - yes, in a different role. Don't know how much value that has though, and I don't have anything in writing that suggests future employment with them. As of now, I have an offer from a large tech firm that I plan to join after graduation.

Q, any thoughts on my I140 getting cancelled and the USCIS website not reflecting the correct status? To me that sounds like a bigger issue because I'll not be able to go back on H1 if the 140 is withdrawn (or can I?). My current plan is to complete my course, apply for H1, go to India, wait for H1 to be approved, get it stamped and then return to the US.

[sportsfan33]

Thanks for your reply, Q. Below are the answers to your questions.

Q1. I assume you didn't file your 485, correct?
No, 485 was not filed.
Q2. Can you file it now (is the date current)?
PD is August 2010. So it's not current.
Q3. Looks like your former employer is more than willing to continue GC processing after you graduate. Correct?
No idea what my former employer intends to do right now. They were a small company (about 100 employees, not consulting/staffing) and were acquired by a bigger company right before I left in 2013. FWIW, during the exit interview, when they asked me if I'd like to come back and work for them after my MBA, I had said - yes, in a different role. Don't know how much value that has though, and I don't have anything in writing that suggests future employment with them. As of now, I have an offer from a large tech firm that I plan to join after graduation.

Q, any thoughts on my I140 getting cancelled and the USCIS website not reflecting the correct status? To me that sounds like a bigger issue because I'll not be able to go back on H1 if the 140 is withdrawn (or can I?). My current plan is to complete my course, apply for H1, go to India, wait for H1 to be approved, get it stamped and then return to the US.

The chance that your I140 is touched is close to NIL in my opinion.

It was approved long ago. Your company was acquired. I do not believe the company will bother going out of its way to revoke it. I understand revocation is not free and it is usually an intimidation tool used by sucker desi consultants. I don't think you have anything to worry about.

Thanks for informing us the outcome of your meeting with the lawyer. It is pretty clear that the risk to F1 is very high if you have an approved I140...so unless absolutely needed, just avoid any international travel.

Also, your current plan will work. Just take the best offer, get an H1B extension and go for a new PERM while you are on a new 3 year H1B.

Good luck,

[qesehmk]

You can use FOIA to find out if 140 is in good standing.

http://www.uscis.gov/about-us/freedo...foiapa-request

I would also imagine that you do have an EAD based on F1 for 3 years. Is that right?

Thanks for your reply, Q. Below are the answers to your questions.

Q1. I assume you didn't file your 485, correct?
No, 485 was not filed.
Q2. Can you file it now (is the date current)?
PD is August 2010. So it's not current.
Q3. Looks like your former employer is more than willing to continue GC processing after you graduate. Correct?
No idea what my former employer intends to do right now. They were a small company (about 100 employees, not consulting/staffing) and were acquired by a bigger company right before I left in 2013. FWIW, during the exit interview, when they asked me if I'd like to come back and work for them after my MBA, I had said - yes, in a different role. Don't know how much value that has though, and I don't have anything in writing that suggests future employment with them. As of now, I have an offer from a large tech firm that I plan to join after graduation.

Q, any thoughts on my I140 getting cancelled and the USCIS website not reflecting the correct status? To me that sounds like a bigger issue because I'll not be able to go back on H1 if the 140 is withdrawn (or can I?). My current plan is to complete my course, apply for H1, go to India, wait for H1 to be approved, get it stamped and then return to the US.

[ipoh123]

Thanks Sportsfan and Q!

"I would also imagine that you do have an EAD based on F1 for 3 years. Is that right?"
I will not get an EAD through OPT, as this is my second master's degree and had used my OPT for the first one.

[confused1234]

@ipoh123
What did you do finally? Did you visit India for F1 visa?

[ipoh123]

@ipoh123
What did you do finally? Did you visit India for F1 visa?

No.. I consulted with 2 attorneys (my companies and one from Murthy) and both asked me not to. I know lawyers would always advice one to be on the safer side, but I thought of postponing my visit since I had the option. I'm finally headed to India later this week. Planning to be back on H1b.

[Jithamanyu Rangarajan]

No.. I consulted with 2 attorneys (my companies and one from Murthy) and both asked me not to. I know lawyers would always advice one to be on the safer side, but I thought of postponing my visit since I had the option. I'm finally headed to India later this week. Planning to be back on H1b.

Hi ipoh123,

Your thread about F1 visa stamping after H1b is a god send thread for me. I am in the exact same situation, except I am just now applying for b-school. I have quite a few questions as I am in H1B now. Could you please help me out?

1. Did your visit to India was successful? Did you get the H1B visa stamped?
2. If possible could you please tell me which school did you attend?
3. How difficult was it to find job after MBA since we cant use OPT? Do we have to get a job even before graduation so that we can join immediately after graduation?
4. Is there a time period which we can use to search jobs after graduation? What would be the visa status immediately after graduation? Do we still remain in F1?

I am sorry for asking so many questions. I cant find any relevant poster in the internet still active. All the posts are old and the users are no longer active on the websites, so I am not able to contact them. Your help is greatly appreciated.

P.S. Also sent a PM. I was not sure if you are still active here.

[tnjiitr]

Hi,

I am in the same boat as you. Can you please tell us what happened in your case?

Hi ipoh123,

Your thread about F1 visa stamping after H1b is a god send thread for me. I am in the exact same situation, except I am just now applying for b-school. I have quite a few questions as I am in H1B now. Could you please help me out?

1. Did your visit to India was successful? Did you get the H1B visa stamped?
2. If possible could you please tell me which school did you attend?
3. How difficult was it to find job after MBA since we cant use OPT? Do we have to get a job even before graduation so that we can join immediately after graduation?
4. Is there a time period which we can use to search jobs after graduation? What would be the visa status immediately after graduation? Do we still remain in F1?

I am sorry for asking so many questions. I cant find any relevant poster in the internet still active. All the posts are old and the users are no longer active on the websites, so I am not able to contact them. Your help is greatly appreciated.

P.S. Also sent a PM. I was not sure if you are still active here.

[go4sandee]

This might be too late for your question but I just wanted to say that I was in a similar situation but my F1 was approved. I had seen this thread before my stamping and it had scared the bejesus out of me. Just wanted to report back for anyone who might come across this post in the future.

[nrj8720]

hi go4sandee. hope I am not too late on this thread.. I am in the same situation. I will be applying this fall for b-schools and have my I-140 approved.. did you face any trouble with COS to F-1? can you share info of the attorney that you worked with.. thanks for all the help!

[go4sandee]

hi go4sandee. hope I am not too late on this thread.. I am in the same situation. I will be applying this fall for b-schools and have my I-140 approved.. did you face any trouble with COS to F-1? can you share info of the attorney that you worked with.. thanks for all the help!

I did not face any trouble. There wasn't any attorney I worked with - did the application myself.

[hap088]

Hi go4sandee, I am in the exact same situation and really need help for F1 visa interview. How were you able to convince VO officer regarding your intent not to immigrate and settle in the US, when you went for your F1 visa interview? Please help. Thanks a lot.

[go4sandee]

Hi go4sandee, I am in the exact same situation and really need help for F1 visa interview. How were you able to convince VO officer regarding your intent not to immigrate and settle in the US, when you went for your F1 visa interview? Please help. Thanks a lot.

I have replied to your PM. Good luck!

[yueluo]

Hi go4sandee, I am in the exact same situation and really need help for F1 visa interview. How were you able to convince VO officer regarding your intent not to immigrate and settle in the US, when you went for your F1 visa interview? Please help. Thanks a lot.

Hey, any updates about your visa interview?