Leaving on F1 and coming back on H1 while AOS pending

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sandeep2453

Registered Users (C)
Can someone please help me answer my questions below. Any help will be highly appreciated. Thanks

My wife's OPT recently expired. She has an H1b approval (visa to be issued abroad) with a start date of Oct 1. Meanwhile she has also applied for 485 as my derivative beneficiary. We recently also applied for her COS from F1 to H4. We are planning to go to India to get the H1B stamped but are fearing that recent filing of 485 would be abandoned. My question is
1) Can a person currently on F1 with pending I 485 leave US for 30 days and comeback on H1B without abandoning I 485 application assuming travel is without AP?
2) Once she gets her H4 approved (likely after Oct 1) can she go and get H1B stamped even though the start date on her h1b is Oct 1?
3) Can we get an emergency AP from local USCIS office given our situation?
 
I'd wait for H4 to get approved and then travel to get H-1B stamped. Leaving the country before that could jeopardize AOS for your wife.
 
sandeep2453 said:
Can someone please help me answer my questions below. Any help will be highly appreciated. Thanks

My wife's OPT recently expired. She has an H1b approval (visa to be issued abroad) with a start date of Oct 1. Meanwhile she has also applied for 485 as my derivative beneficiary. We recently also applied for her COS from F1 to H4. We are planning to go to India to get the H1B stamped but are fearing that recent filing of 485 would be abandoned. My question is
1) Can a person currently on F1 with pending I 485 leave US for 30 days and comeback on H1B without abandoning I 485 application assuming travel is without AP?
2) Once she gets her H4 approved (likely after Oct 1) can she go and get H1B stamped even though the start date on her h1b is Oct 1?
3) Can we get an emergency AP from local USCIS office given our situation?
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First thing you need to know is some thing called last action rule. If either of H4 or H1 which ever gets approved at the last will be her status. In your case H1 is already approved and H4 is pending she will be on H4 once it gets approved.
With H1B she cannot enter US earlier the Sept 20th since her H1B starts on 1st of October


If you are coming back on H1 and H4, I-485 is not treated as abandoned. But your spouse cannot work on H1.



First thing you need to know is some thing called last action rule. If either of H4 or H1 which ever gets approved at the last will be her status. In your case H1 is already approved and H4 is pending she will be on H4 once it gets approved.
With H1B she cannot enter US earler the Sept 20th since her H1B starts on Ist October

If you are applying for H4 in India there is no need of waiting for H4 approval here.
 
Thanks a lot for your reply. As regard to your point about last action, her H1B approval was for visa to be issued abroad (CP) and not COS in US and says that her status is not transfered untill her visa is approved at consulate. Our attorney said that it was fine to apply H4 and then go to india to get the H1 stamped.

As regard to your point in AOS abandonement, I have visited so many sites and was unable to find answer to the question that "does leaving US on other than H,L or K visa and coming back on H,L or K visa would preserve the AOS application or not?". Could you please direct me to any place where you read any info regarding that? It would be of a huge help.

Thanks again for taking time to post replies to my questions.
 
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