URGENT-Converting from H1B to F1 with I-130 pending

[montage9]

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*ever* means if I-130 has ever been filed and the answer to that would be yes no matter the application has been withdrawn.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!.

 

[LucyMO]

answer yes and provide the information requested.

 

[wenlock]

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:-
Our question to the attorney was what do we put for Question 3b in form I-539, the question is

would constitute a chance for outright reject of change of status?. Thanks in advance!.

Attorney is misguiding you. Here is what I would do. First forget about getting F1 visa when converting from H1b to F1 when you are married to LPR. I-130 is already pending for your wife thus showing her immigrant intent.

Prerequisite for F1 (Student visa) is that you do not have immigrant intent now by filing I-130 and married to LDR almost show clear that your wife has immigrant intent and she will never qualify for F1 visa period.

Only way she can qualify is that you give up your green card and revoke her immigrant petition and things changed well enough for your wife that she can claim she does not have immigrant intent still burdun of proof for showing non immigrant intent is on your wife. Then she might qualify for F1 but then there is no point of doing all this.

OK if her H1b expires let it go she will fall illegal but once you get citizen you can upgrade her petition and she can easily adjust status in country. Just do not let her leave the country after she fell out of status.

It is fine if she fell out of status as long as you become citizen. Now if you does not become citizen then ya she has problems but even for those problems waiver is available it is not easy to get but ya you still have option under law.

Now if you lie on application you put ur self in much worst condition so please do not do that. It is easy to convince Immigration officer why you fell out of status then convincing that why you lied.

So my suggestion is just wait and let her go out of status and once you become citizen you can file AOS and she can adjust without issues. If you are close to Citizenship that you might also consider sending her to home country and try K3 but it all depends on your circumstances and I do not know enough about it.

 

[montage9]

Thanks LucyMO and Wenlock!. Appreciate your quick response. One final follow up question. What happens if we apply I-539 with "yes" to 3b and provide a letter explaining our whole situation, I am assuming based on Wenlock's remark, that most likely F1 might get rejected on grounds of immigrant intent. If F-1 does get rejected, then the return letter from USCIS will have a date by which my spouse will have to leave the country, if she does not, then is it construed to be anything different than just going out of status after H1B expiration?. Thanks in advance.