Urgent: H4 to F1 after I-140 being approved

P

prettykitty

Registered Users (C)
Hi,

I am currently on H4 visa and plan to change to F1 for further studies (to get the benifit of CPT/OPT). My husband had filed for green card in Dec 2005 (stage I LCA) which got approved. For the second stage (I 140) even my name was included and the same was approved in April 2006. We have not yet applied for third stage as there is waiting period for it.

I would like to know whether in such a scenario is there any risk in applying for conversion to F1. As I understand from the other posts the risk lies mainly if I do go out of US and need to get the visa stamped. Please shed some light if there is any other catch involved in the process. Also is there any possibility of GC being rejected in case the F1 is approved.

Can anyone also suggest some other way (other than converting to F1) which may enable me to do CPT/OPT while my pursuing my studies.
 
Also is there any possibility of GC being rejected in case the F1 is approved.
Click to expand...

no

Can anyone also suggest some other way (other than converting to F1) which may enable me to do CPT/OPT while my pursuing my studies.
Click to expand...
wait for I-485/I-765 filing?
 
Thanks a lot LucyMo for the quick reply :) . Waiting for I-485 is not viable since I have already applied for Fall 2007 and plan to start MS then itself.

Could you please clarify one more thing, the I-539 (form for change of status) has 3 questions pertaining to filing of immigration petition/immigration visa. In this case I will have to answer them as 'yes'. Can the application be rejected in such a case? Can the explaination required for the same be given as 'F1 required to be eligible for CPT/OPT towards course requirement'.

What is the difference between 'immigration visa' and an 'immigration petition'?
 
Can the application be rejected in such a case?
Click to expand...
it could be rejected in any case.
Can the explaination required for the same be given as 'F1 required to be eligible for CPT/OPT towards course requirement'.
Click to expand...
I don'tknow - never changed status myself.

You do know you can study on H4 for the first year of your MS degree (unless you get an assistantship), and then before the first year is over, apply for a change of status (if you don't get to file I-485 by then), and then do a full academic year in F-1 status and be eligible for CPT and OPT.
 
I don't understand why you have to answer yes at the immigration questions in form I-539. Has a immigration petition ever been filed by you or in your behalf? The answer should be no. The immigration petition is your husband's. And you were included in I-140 because it was asking for the names of spouse and children.

I answered no when I changed my status to H4. To be onest I didn't even know that my name was mentioned in his application. Probably my son's too, who is by the way an US citizen by birth. When you will file I-485 things will change.

I might be wrong, but this is how I answered these questions (and at that time I told the international adviser that my husband had a pending I-140 application).

Are you, or any other person included on the application, an applicant for an immigrant visa?
NO. (Your husband is.)

Has an immigrant petition ever been filed for you or for any other person included in this application?
NO. (But it was for your husband.)

Has a Form I-485, Application to Register Permanent Residence or Adjust Status, ever been filed by you or by any other person included in this application?
Definitely NO.

This is my opinion, but why don't you check with your international office (advisor)? They are very knowledgeable with these issues.

Also this opinion was based on my understanding that your husband has an approved employment-based petition, and that your category is afected by retrogression.

Wish you good luck!
 
@ioananv

In your case, you had applied for a COS to H4 which allows one to have dual intent. Any H visa (which is also a non immigrant visa) does not forbid one from having an immigration intent. But F1 is not permit one to have a dual intent.

Also I fail to understand that if the I-140 does include the spouse's name, how does it not qualify them as a petitioner for I-140?

I am also consulting the International advisors but have not recieved any concrete or satisfying reply.

Thanks for your good wishes. :)
 
Even if I had applied for a change a status to F1 I would have answered the same.

The approved I-140 does not entitle you to apply for I-485, because it is not yours. You are entitled to apply to AOS only after/at the same time your husband applies. The approved I-140 has an A number on it (well, at least my husband's had). That is the alien number assigned to your husband. You did not receive an A number yet, you will get one when you apply to I-485 (and this can only happen after your husband applies for I-485).

Of course this is just my opinion (so I could be wrong :eek: ), but I would argue the same in front of an immigration officer.

BUT I strongly advise you, if the international adviser did not have an acceptable answer, to seek the help of a lawyer. You can find them even on the web. Some of them post their prices, it could be ~$200 for a half an hour. It is expensive, but if you need the assurance of a legal expert...

Also I have used the following site for some simple answers (it's free):
http://www.allexperts.com/browse.cgi?catLvl=3&catID=344

I am sure everything will turn out all right in the end! :)
 
I 130 and I 140 both are underlying petitions for immigration.

Though I 130 or I 140 for only one person but all the dependents listed on this I 130 or I 140 are definitely an immigration candidate.

If you are applying for F1 with in the US , you no need to prove about your non immigration intentions, I have got h4 to F1 for several people with no problem in the past, there own I 130 /140 were pending even we gave their pending petitions references.

ioananv said:
This is what happened to someone who answered yes to that question (of course it was a COS to H4, for F1 your application might be rejected without RFE)

http://immigrationportal.com/showthread.php?t=234373
Click to expand...
 
I am sorry if I offended anyone.

I did not say that she is not an immigration candidate. Applying to green card lottery also shows immigration intent. That doesn't mean that an F1 visa is not granted. I just stated my opinion (and what I actually did when filling forms with these questions) regarding the corect answers to the 3 questions in form I-539.

I also did not say that the application will be rejected, I just said that it might based on my guess that it might be considered immigration intent. I have no experience with filling COS F1 forms and answering yes to the immigration questions.
 
Thanks a lot ioananv and great guru. I really appreciate your quick responses.

@great guru

As you have metnioned that you have personally encountered cases of COS from H4 to F1 where the I-140 was already approved, could you please guide me as to what should I write as an explaination to the questions (related to immigration petition filed) answered 'yes' so as to reduce the risk, if any, in such cases.
 
Answer " YES"

here key for COS is your financial support affidavit and proof.


prettykitty said:
Thanks a lot ioananv and great guru. I really appreciate your quick responses.

@great guru

As you have metnioned that you have personally encountered cases of COS from H4 to F1 where the I-140 was already approved, could you please guide me as to what should I write as an explaination to the questions (related to immigration petition filed) answered 'yes' so as to reduce the risk, if any, in such cases.
Click to expand...
 
My situation

Could anyone comment on my situation.
I currently have H4 status and is attending school at university of oklahoma. however, I will turn 21 next february and I need to change my status to F1. My mom's I-140 was approved and we are waiting for an visa number to be available to file I485. I have a few questions:
Can I change my status?
My schools' international adviser seems to say I can not change to F1 because my mom I140 was approved. If I can file to change, how should I answer questions 3a and 3b on I539.
3a) Are you, or any other person included on the application, an applicant for an immigrant visa?
3b) Has an immigrant petition ever been filed for you or for any other person included in this application?
Any help would be greatly appreciated.
 
Last edited by a moderator:
hi prettykitty, so what did u finally do? did u contact anyone for some legal advice? did u finally apply for F1 with a Yes or a No to the "Has an immigrant petition ever been ...".....my husband and I are in a similar mess, I have applied for my I140 (not yet approved) with his name as my spouse and he needs an H1 to F1 transfer...would really appreciate some inputs if you have any....thx!
 
You must log in or register to reply here.
Top