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Changing H1B to Student Visa
- Thread starter venkiey
- Start date
Thanks immi007.
unfortunately, I applied for the GC under EB2 and got denied.
Also planning to file under EB3 now. Are you sure that if we apply for immigration, we can't change to F1 from H1
... trying for all possibilities to stay in this country legally.
Thanks
unfortunately, I applied for the GC under EB2 and got denied.
Also planning to file under EB3 now. Are you sure that if we apply for immigration, we can't change to F1 from H1
... trying for all possibilities to stay in this country legally.
Thanks
Last edited by a moderator:
Intent
I understand your point of finding ways to continue the stay, and there is nothing wrong to do that.
To make things clear: H (or L or O) type visas are considered 'dual intent' visas. Although you are given it for a temporary period, INS knows that you may have an intention to immigrate to USA.
For the other visas, e.g. B (Visitor or Business), F (Student) visa are clearly for a temporary period, and can be denied if you show any intention to immigrate. If you know yourself or anybody's case who tried to get these type of visa, they have to show some proof (like assets, other family ties etc.) to the Consular in their home country that they WILL return back, and will not stay back in the US. If the consular is not satisfied for whatever reason, s/he can deny your visa application.
As stated, H is different, and you don't have to prove to the consular any such ties to your home country that you will return. It is assumed that you MIGHT stay back in the US.
This why, once you have applied for LC, INS knows that you want to stay back in the US, and it contradicts the ground for F-1.
I think EB3 is not a bad thing as long as the Priority dates remain current. Of course, the wait is longer to reach to the 485 stage, but with the new rule of filing 485 concurrently with 140, you will be not have any major problems.
Is your 6 year of H-1 expiring in 3/2003?
I think we can continue discussing here so that it might benefit others also, just in case ...
I understand your point of finding ways to continue the stay, and there is nothing wrong to do that.
To make things clear: H (or L or O) type visas are considered 'dual intent' visas. Although you are given it for a temporary period, INS knows that you may have an intention to immigrate to USA.
For the other visas, e.g. B (Visitor or Business), F (Student) visa are clearly for a temporary period, and can be denied if you show any intention to immigrate. If you know yourself or anybody's case who tried to get these type of visa, they have to show some proof (like assets, other family ties etc.) to the Consular in their home country that they WILL return back, and will not stay back in the US. If the consular is not satisfied for whatever reason, s/he can deny your visa application.
As stated, H is different, and you don't have to prove to the consular any such ties to your home country that you will return. It is assumed that you MIGHT stay back in the US.
This why, once you have applied for LC, INS knows that you want to stay back in the US, and it contradicts the ground for F-1.
I think EB3 is not a bad thing as long as the Priority dates remain current. Of course, the wait is longer to reach to the 485 stage, but with the new rule of filing 485 concurrently with 140, you will be not have any major problems.
Is your 6 year of H-1 expiring in 3/2003?
I think we can continue discussing here so that it might benefit others also, just in case ...
I-140/I-485 concurrent filing
This is good advice by immi007; your's is definitely a case where you can take advantage of I-140/I-485 concurrent filing.
The grey areas in the new concurrent filing mostly relate to AC-21 portability. It should be pointed out that, while AC-21 portability is mostly taken to be "I-485" portability, it is actually the portability of an *approved* I-140 which underlies the I-485, and can be taken advantage of if the 1-485 remains unadjudicated for > 180 days. One grey area is, what happens if the underlying I-140 is denied.
In your case, the overriding concern - at least for now - is finding/retaining legal basis to continue residing in the U.S., since your H-1 is expiring (i assume in 3/2003). Once your 485 is filed, you become an "adjustee", and, as such can remain in the U.S. until your case 485 is adjudicated. You can also apply for EAD and continue working on that basis. At this time, AC-21 is not really one of your concerns, provided you have a steady job.
The requirements for EB3 are not as high as those for EB2, so your I-140 has a much better chance of being approved, thus keeping your AOS alive.
DISCLAIMER: The above should not be considered legal advice/recommendation. Please consult a qualified immigration attorney for legal advice.
This is good advice by immi007; your's is definitely a case where you can take advantage of I-140/I-485 concurrent filing.
The grey areas in the new concurrent filing mostly relate to AC-21 portability. It should be pointed out that, while AC-21 portability is mostly taken to be "I-485" portability, it is actually the portability of an *approved* I-140 which underlies the I-485, and can be taken advantage of if the 1-485 remains unadjudicated for > 180 days. One grey area is, what happens if the underlying I-140 is denied.
In your case, the overriding concern - at least for now - is finding/retaining legal basis to continue residing in the U.S., since your H-1 is expiring (i assume in 3/2003). Once your 485 is filed, you become an "adjustee", and, as such can remain in the U.S. until your case 485 is adjudicated. You can also apply for EAD and continue working on that basis. At this time, AC-21 is not really one of your concerns, provided you have a steady job.
The requirements for EB3 are not as high as those for EB2, so your I-140 has a much better chance of being approved, thus keeping your AOS alive.
DISCLAIMER: The above should not be considered legal advice/recommendation. Please consult a qualified immigration attorney for legal advice.
Is there a job for you in Delaware? There must be a permanent job available at the location filed for for the LC to be validly approved. doing the advertising for a job that does not really exist and filing and LC in Delaware when there is no job available there sounds an awful lot like a clear case of immigration fraud to me.