H4 to F1 Visa Stamping: The only unanswered questions till now

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dietcoke

New Member
Hi: :confused:

I came to the USA in 2004 on H-4 visa and recently changed my status to F-1 after joining PhD this fall.

We now plan to go to India in December. My husband has his labour approved for his GC but we do have not yet filed I-140.

I know my situation is like may others here but no-one has answered these questions that I mention below:

a) My husband's labor is approved but I-140 is not filed, so doesn't it mean that till now, we have not shown any immigration intent? Does my husband have an immigration intent just by being on H-1? Will my F-1 visa stamping request still be rejected at the consulate when I go to India?

b) If my F-1 stamping requested gets rejected, Does my H-4 visa get cancelled automatically too? Or Can I come back on H4 visa? Are things different in India/Canada on this particular issue?

c) Would things have been any different had my husband not applied for labor certification?

Any answers will be greatly appreciated. Thanks much in advance.

Ruch@USA
 
dietcoke said:
We now plan to go to India in December. My husband has his labour approved for his GC but we do have not yet filed I-140.

a) My husband's labor is approved but I-140 is not filed, so doesn't it mean that till now, we have not shown any immigration intent? Does my husband have an immigration intent just by being on H-1? Will my F-1 visa stamping request still be rejected at the consulate when I go to India?
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Neither of you has demonstrated immigrant intent. Only a filed I-485 can demonstrate immigrant intent. Further it is no issue for your husband because a H1-B allows for dual intent (immigrant and non-immigant). An F-1 is only non-immigrant.
dietcoke said:
b) If my F-1 stamping requested gets rejected, Does my H-4 visa get cancelled automatically too? Or Can I come back on H4 visa? Are things different in India/Canada on this particular issue?
Click to expand...
If you are on a valid H4 and for some reason you are unable to switch to F-1, your H-4 will remain valid.
dietcoke said:
c) Would things have been any different had my husband not applied for labor certification?
Click to expand...
not relevant.
 
Thanks

Thanks for the reply Gunt. Do you know what will happen when I come back if my F1 gets rejected? Do I automatically become an H4 or do I have to file for a change of status again? How will the INS know that my visa stamping was refused?


Ruch@USA
 
Ruch

I would recommend to get some legal advice on this since my lawyer expressed exactly what your initial concerns were. My wife's in a similar situation and upon enquiring with the attorney he mentioned that the very fact that I am on an H1 shows a possible immigrant intent and since F1 is a solely non-immigration intent visa (and hence all the varied family/property questions at the consulate at the time of its stamping), there is a chance that the CBP officer at the port of entry denies admission (even if the F1 visa is somehow approved).

now this is not to dishearten you since i would like to have some way around as well. So if you know that above mentioned is not true, kindly post.

Good luck.

AB
 
H1 to F1 COS

Hi! I'm in a similar situation. I'vebeen on the H1 for 4 years and I'm trying to change status to F1. I have applied for the first phase of the residency application, byt my case is still pending. Questions:

1. Is it true that until I file the I-485 I have not really shown immigration intent?

2. Is it true that if I cancel my current pending GC application I am still elligible for the F1?

Help appreciated.
 
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