Help pls. Question on EB3 retrogression and F1 visa

G

gmdetroit

Registered Users (C)
This site is been very helpful for all of us and we have been seeing so many valuable information on this forum. This forum is really informative.

I have a question and need assistance from all of you. My husband has applied for labor on 2003 mid on EB3 category. His labor is approved and 140 is also approved. But we are waiting to file for 485. I have been working in US on L1 visa and my company did not apply for my permanent residentship. I have already completed six years in US. Now I cannot file for a new H1B or extend my existing visa. I have taken admission to an university and planning to convert my visa status to F1. My question is if I am here in US on F1 visa for more than an year, will it be considered as a one year without working in US and therefore can I be able to apply for a new fresh H1B after being one year on F1.


Thanks a lot guys.
 
gmdetroit said:
My question is if I am here in US on F1 visa for more than an year, will it be considered as a one year without working in US and therefore can I be able to apply for a new fresh H1B after being one year on F1.


Thanks a lot guys.
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No :( ,you need physically leave for one year in order to reset your clock
 
Response pls

Thanks. Is it so? Are you sure? I have been in US on L1A visa now which will expire soon. Due to retrogression, I have no idea when my husband's 485 will get filed. So, even if I stay on F1 visa for 1 and 1/2 years and complete my MS in CS, will I not qualify for the new STEM rules by my advanced degree?
 
You said that U are in US since last 6 years..

I think L1A visa can go upto 7 years... and then U need to get out of the country to reset the clock.Any time spent under an H-1 visa status will count towards this maximum.


... when U are a beneficiary how can U gain anything with Ur qualifications.
 
Thanks Nadi

Nadi,

Thanks but didn't quite understand ur last sentence. I am on L1 and it will expire soon (within an year). Also because I am enrolling for MS, I would like to leave the job and study fulltime and complete it ASAP on F1 visa. Will I not qualify for applying my own greencard after that using H1B or stem rule? Thanks again.
 
H-1B and H-4 times are all counted together against the 6 year limit. If your H-1B employer can't apply green card for you, you can't pass that 6 year limit.

You can go back to school for 1 year and get OPT to work.
 
gmdetroit said:
Nadi,

Thanks but didn't quite understand ur last sentence. I am on L1 and it will expire soon (within an year). Also because I am enrolling for MS, I would like to leave the job and study fulltime and complete it ASAP on F1 visa. Will I not qualify for applying my own greencard after that using H1B or stem rule? Thanks again.
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Do not want to make you worried, but there is a chance (big chance) that your F1 will get denied. Filing 140 shows an intent to immigrate and unfortunately F1 is a "pure" non-immigrant visa.
 
What is OPT?

Friend,

Could u pls explain me in little bit as to how long can I work on that OPT? Also lets say I am on F1 and working on OPT. But once I complete my MS, I need to be on H1 to continue to work , right. In that case, will it be a problem as because I am have already stayed in US on L1 visa for six years? Thanks much.
 
Response to GC_woes

GC_woes,

I haven't applied for 140, My husband has applied and as a spouse, he will be able to file for 485 for me along with his. But because I have spent already 6 years in US and I am planning to go for F1, do u think in this case also my F1 may get denied? Please help me with ur suggestion. Also my main question is after I finish MS, will I be able to file for a fresh H1B and work in US without going outside the country?
 
gc_woes is correct. if you have been listed as a dependant or a beneficiary in your husband's I-140 immigration petition and your husband's I-140 has been approved you CANNOT go back on a F1 visa. F1 is strictly a non-immigrant visa in which you have to show ties to your home country.

H-visas are dual intent. so you will have to goto school on a H4 visa and not F1 visa. My wife is attending school on a H4 visa after talks with lawyers. she is a beneficiary for GC on my application.


gmdetroit said:
GC_woes,

I haven't applied for 140, My husband has applied and as a spouse, he will be able to file for 485 for me along with his. But because I have spent already 6 years in US and I am planning to go for F1, do u think in this case also my F1 may get denied? Please help me with ur suggestion. Also my main question is after I finish MS, will I be able to file for a fresh H1B and work in US without going outside the country?
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Thanks Nishi

Nishi,

I am not mentioned in 140 application as a beneficiary. My husband is going to mention me while filing 485. In that case, can I have a F1 visa?
 
Similar Question

Dear Folks,

My I-140 is approved and waiting to file for 485 and my wife is in H4 and wants to do Masters. There is a significant advantage in converting to F1 as you can get assistantship as you can legally work for the University and you can have a SSN and once you get assistantship your tuition fee automatically gets adjusted towards in-state fee and you get OPT as well after finishing Masters.

Whereas in H4 you dont get anything and the fees for Out-state resident is double the rate as in in-state. I told the University about the situation and they also kind of gave me the same reason saying that F1 means you affirm to US saying that you would go back to home country.

We are now confused. Not sure what to do. Even if we somehow, convince the University to let us do the Masters in F1, not sure if it will cause any problems, while filing for I-485.

Any tip would be most welcome.

Regards,
Vishva
 
vishwams
there are some other differences you ought to conisder
1)f1 implies atleast 9 credits (3 courses generally) per semester
you have to take that many to maintain valid f1.
For h4 theres no such consideration so you can complete course work at your own pace.

I think its not an issue while filing 485 , because filing 485 just requires existing non immigrant visa (which she willhave even if its h4 or f1)
 
Help

Guys, could anyone please give me a concrete answer as to whether my 6 years clock will reset or not if I stay in US on F1 visa for more than an year. Any help will be appreciated.
 
vishva,

like i said earlier...if you have listed your wife as a beneficiary or dependant then it is going to be really hard to go back on a F1 visa. F1 is strictly a non-immigrant visa and H visas are also non-immigrant visas but are dual intent.

my wife is also attending school on a H4 visa because of this reason. i would have loved to have my wife attend school on a F1 due to the benefits of OPT etc. But lawyers will advise you against it.

another challenge is that even if you get your F1 approved here, you will have to go to your home country to get your wife's F1 visa stamped and most likely that'll get rejected.

I suggest you talk to your lawyer....though i know what he/she is going to say......"It's up to You, I wouldn't recommend it."

vishwams said:
Dear Folks,

My I-140 is approved and waiting to file for 485 and my wife is in H4 and wants to do Masters. There is a significant advantage in converting to F1 as you can get assistantship as you can legally work for the University and you can have a SSN and once you get assistantship your tuition fee automatically gets adjusted towards in-state fee and you get OPT as well after finishing Masters.

Whereas in H4 you dont get anything and the fees for Out-state resident is double the rate as in in-state. I told the University about the situation and they also kind of gave me the same reason saying that F1 means you affirm to US saying that you would go back to home country.

We are now confused. Not sure what to do. Even if we somehow, convince the University to let us do the Masters in F1, not sure if it will cause any problems, while filing for I-485.

Any tip would be most welcome.

Regards,
Vishva
Click to expand...
 
you're good then,
gmdetroit said:
Nishi,

I am not mentioned in 140 application as a beneficiary. My husband is going to mention me while filing 485. In that case, can I have a F1 visa?
Click to expand...
 
help

Nishokie,

Also pls help me to understand if I can appoly for a fresh H1B after being on F1 visa for more than an year even if I have completed my 6 years quota for non-immigrant visa.

Appreciate all ur help.
 
gmdetroit said:
Nishokie,

Also pls help me to understand if I can appoly for a fresh H1B after being on F1 visa for more than an year even if I have completed my 6 years quota for non-immigrant visa.

Appreciate all ur help.
Click to expand...

Here is the law. There is nothing more concrete than this.

Here is for H holder.
8 CFR 214.2 (h) (13)(i) (B)

(B) When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15)(H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. The petitioner shall provide information about the alien's employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to spend time abroad.


Here is for L holder.
8 CFR 214.2(l)(12) (i)

(i) Limits. An alien who has spent five years in the United States in a specialized knowledge capacity or seven years in the United States in a managerial or executive capacity under section 101(a)(15)(L) and/or (H) of the Act may not be readmitted to the United States under section 101(a)(15)(L) or (H) of the Act unless the alien has resided and been physically present outside the United States, except for brief visits for business or pleasure, for the immediate prior year. Such visits do not interrupt the one year abroad, but do not count towards fulfillment of that requirement. In view of this restriction, a new individual petition may not be approved for an alien who has spent the maximum time period in the United States under section 101(a)(15)(L) and/or (H) of the Act, unless the alien has resided and been physically present outside the United States, except for brief visits for business or pleasure, for the immediate prior year. The petitioner shall provide information about the alien's employment, place of residence, and the dates and purpose of any trips to the United States for the previous year. A consular or Service officer may not grant L classification under a blanket petition to an alien who has spent five years in the United States as a professional with specialized knowledge or seven years in the United States as a manager or executive, unless the alien has met the requirements contained in this paragraph.
 
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