Hi All,
Wanted to quickly double check with you and get a second opinion of what a local immigration lawyer suggested to us. Here is the situation:-
I am a LPR and filed for my spouse a I-130 petition under F2A category (spouse of LPR), this petition has been pending for the past couple of years. Meanwhile, my spouse's H1B is completing 6 year and no time to recapture. So my spouse was able to get admission to a school for masters program and school has issues I-20 for the same. Right now we are thinking of changing the status of my spouse from H1B to F1, till the time I get my US citizenship and I am able to upgrade I-130 petition to IR1 (Immediate Relative) status and simultaneously file AOS also. Given the above situation, we consulted a local attorney for filling out I-539 (change of status/extension of stay) form
Our question to the attorney was what do we put for Question 3b in form I-539, the question is
3b. Has an immigrant petition *ever* been filed for you or anyone else in this application
The attorney suggested the below two options:-
1. Withdraw the pending I-130 petition and put "No" in the above question
But we think this would be incorrect, because *ever* means if I-130 has ever been filed and the answer to that would be yes no matter the application has been withdrawn. Moreover, it could also be viewed in negative light on account of reasons for withdrawing the petition.
2. Put "yes" to question 3b and don't submit any additional sheet explaining the answer "yes" to this question. This according to the lawyer should result in RFE, for which there would be 85 days to comply (in essence buying more time so that hopefully in the meantime, my citizenship might come through and AOS can be filed).
We would appreciate your educated opinion the above two options, personally, we are inclined to go with option 2, however, we want some inputs on whether by not supplying additional information to question 3b, would constitute a chance for outright reject of change of status?. Thanks in advance!.
Wanted to quickly double check with you and get a second opinion of what a local immigration lawyer suggested to us. Here is the situation:-
I am a LPR and filed for my spouse a I-130 petition under F2A category (spouse of LPR), this petition has been pending for the past couple of years. Meanwhile, my spouse's H1B is completing 6 year and no time to recapture. So my spouse was able to get admission to a school for masters program and school has issues I-20 for the same. Right now we are thinking of changing the status of my spouse from H1B to F1, till the time I get my US citizenship and I am able to upgrade I-130 petition to IR1 (Immediate Relative) status and simultaneously file AOS also. Given the above situation, we consulted a local attorney for filling out I-539 (change of status/extension of stay) form
Our question to the attorney was what do we put for Question 3b in form I-539, the question is
3b. Has an immigrant petition *ever* been filed for you or anyone else in this application
The attorney suggested the below two options:-
1. Withdraw the pending I-130 petition and put "No" in the above question
But we think this would be incorrect, because *ever* means if I-130 has ever been filed and the answer to that would be yes no matter the application has been withdrawn. Moreover, it could also be viewed in negative light on account of reasons for withdrawing the petition.
2. Put "yes" to question 3b and don't submit any additional sheet explaining the answer "yes" to this question. This according to the lawyer should result in RFE, for which there would be 85 days to comply (in essence buying more time so that hopefully in the meantime, my citizenship might come through and AOS can be filed).
We would appreciate your educated opinion the above two options, personally, we are inclined to go with option 2, however, we want some inputs on whether by not supplying additional information to question 3b, would constitute a chance for outright reject of change of status?. Thanks in advance!.