H4 to F1 (I-140 approved - GC)

K

KnockOutGC

New Member
Hi,

I am on H1 Visa & my wife is on H4 Visa.

I filed for GC in March 2003 under EB3 India Category. My I-140 was approved back in April 2005 and my wife’s name is listed on it. I have been waiting to apply for I-485 and as you all know, the PD currently is in April 2001 for EB3 India. I am not sure of when it will reach March 2003.

My wife is currently doing Masters part-time on H4 visa. We are thinking of applying for F1 so that she can apply for OPT to work eventually. We thought she would be out the GC mess by going this way.

I would like to know couple of things.

1. Whether she can apply for F1? We did not file I-485 at this point. Only I-140 got approved so far. I am not sure how to draft a letter explaining this when she files her F1 application.

2. If her F1 gets approved. Will I be able to add her to my GC application when I eventually file for I-485 and get EAD?

Please let me know your views.

Thanks,
 
1. Technically no immigration petition (I140 or I485) has been filed for your wife. However, you, her husband, has immigrant intent and hence, it will be extremely hard to prove that she does not have immigrant intent. For F1 you have to prove non-immigrant intent i.e. your intent to go back to home country after completion of studies.

I am aware of no successful case. But I am also curious what happens if your wife has full scholarship and assistantship on her I20. I think it is a major risk. Also, you should check what happens to your wife's H4 status when her H4 -> F1 COS is rejected. Does she ned to reinstate her H4 status?

You should seek professional opinion (lawyer) before taking such steps

2. If she is on F1 and you file her I485, that should not be a problem. She will go form F1 -> AOS.
 
KnockOutGC said:
Hi,

I am on H1 Visa & my wife is on H4 Visa.

I filed for GC in March 2003 under EB3 India Category. My I-140 was approved back in April 2005 and my wife’s name is listed on it. I have been waiting to apply for I-485 and as you all know, the PD currently is in April 2001 for EB3 India. I am not sure of when it will reach March 2003.

My wife is currently doing Masters part-time on H4 visa. We are thinking of applying for F1 so that she can apply for OPT to work eventually. We thought she would be out the GC mess by going this way.

I would like to know couple of things.

1. Whether she can apply for F1? We did not file I-485 at this point. Only I-140 got approved so far. I am not sure how to draft a letter explaining this when she files her F1 application.

2. If her F1 gets approved. Will I be able to add her to my GC application when I eventually file for I-485 and get EAD?

Please let me know your views.

Thanks,
Click to expand...

I have exactly the same problem.
 
I need this info too...

The difference is that in my case I am yet to file the 140. Should I hold off until my wife's change of status is approved?
 
Apply for f1

You can apply for F-1 status change. SInce your wife is already in US it would not make any difference even if F-1 is denied. Your wife still has H4 stamping so she can continue with studies

But once F1 is approved the problem is your wife may not be able to get stamping since that would mean going outside the country and there is a risk that if they find the name is on 140/485 there is intention to immigrate.
 
I am in the exact situation. Do we need to enclose the original I-94 along with I-539?

If the COS is denied will USCIS return the original I-94?
 
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