H4 to F1,filed for green card-weired situation

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Phpatel

New Member
I came to US 5 yrs back on H4. In the meanwhile my husband filed for Labor and I-140 (approved) and we had a long wait for I-485. Then my husband changed his employer and we have new H1 and new H4 valid uptil 2010. We have not yet filed for labor again (we will soon).

Currently I am studying on H4 and wish to convert to F1 visa for OPT. I understand there is intent conflict with GC and F1, as F1 is non imigrant intent and If approved , I will have to go out of country to stamp my F1 but I have heard that I might have problem to reenter US

Q1. If I get F1 approved, do I have to leave the country and reenter, or can I just stay in US, till I finish my studies and get F1 transfered to H1 eventually ? (and hopefully my husband can add me in I-485 after that)

Q2. Will I have problem with H1, as I would have already finished 6 yrs of H4 by then ?

If anyone can guide me in this sitution, I will be very greatful. pretty pls.
 
Q1: You dont have to leave the country. You can get your H4 to F1 transfer processed within the country, stay on F1 status, file for OPT, work (or not) on OPT, file for H1B, and transfer to H1B ... all without leaving the country, provided you dont have gaps in legal status. This is probably the safest way to navigate your circumstances. Remember, if you leave the country after transfering from H4, you'll need to get a new visa to come back.

Q2: I *think* the USCIS recently issued a clarification / re-interpretation of the law which enables you to have a 6 year H1B even if you have already had 6 years of H4. I *think* it happened in the past year or so.

General comment: Applying for F1 visa at a foreign consulate is never trouble-free because you need to prove to the officer's satisfaction that you do not have any immigrant intent. It is possible that the officer you land up with doesnt care, but if he chooses to go down the road of probing immigrant intent you might be on shaky ground (exhibited immigrant intent by filing for 485 before). If you are rejected you can always return on an H4 (you might have to apply for a new H4 visa if old H4 had expired / if the officer went berserk cancelling existing visas while denying F1).. but there goes your OPT.

Hope that helped.

Disclaimer: Please do NOT substitute for legal advise. I am NOT a lawyer.
 
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