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Change of status H1B to F2 - issues - pls help


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#1 sangeet28

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Posted 19 October 2011 - 12:24 AM

My H1B expired on 9/17/2011. My company has applied for H1B extension which is pending in processing with USCIS since 8/15/2011. My wife is currently on F1. I plan to apply for change of status (to F2) shortly. My questions are

1) can I apply for F2 while my H1B extension application is in processing with USCIS? To be exact, is it possible to have two different types of visa application with USCIS simultaneously.

2) If the answer to the above questions is "yes", let's say I applied for change of status to F2 while my H1B extension application is in processing. And once I get the receipt notice from USCIS (for my F2 application), let's say I resign from my current job. In this scenario (under the assumption that my company will withdraw my H1B extension application when I resign)

a) would I be legal to keep staying in the US as long as my F2 application is in processing?

OR

b) would USCIS find me 'illegal' in the US when they start processing my F2 application (as they see I
don't have any active visa status at that time)

Thank you

#2 livliv

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Posted 19 October 2011 - 09:54 AM

Technically, you must file change or extension of status before your I-94 expires.
In your case you may file COS as a bridging petition depending upon your H1 extension acting as a bridge between I-94 expiry date and COS filing date. But, USCIS will not approve COS until the bridge gets approved. You will also need to prove that you have been maintaining H1 status by working until the day you file change of status to F2.

#3 sangeet28

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Posted 19 October 2011 - 02:03 PM

Thank you very much for your reply. It definitely gives me some useful information. If I may ask, could you please let me know if what I understood is correct?

1. I may file for COS (from H1 to F2) while my H1B extension application is in processing with USCIS.

Lets say USCIS receives my COS application on Nov 3, 2011. In that case, my pending H1B extension application will act as a bridge between 9/17/2011 (my previous I-94 expiry date) and Nov 3, 2011.

Am I right?

2. You said in my situation, I may file my COS as a 'bridging petition'. May I know if I have to follow any special instruction while applying for COS for USCIS to consider it as a bridging petition?

OR

USCIS will automatically consider my COS application as a bridging petition, because my H1B extension application is already in processing?

3. You mentioned "USCIS will not approve COS until the bridge gets approved".

May I know, how we would come to know if the bridge gets approved?

OR

Is it something like, if my COS gets approved, that in itself means the bridge got approved?

4. You mentioned "You will also need to prove that you have been maintaining H1 status by working until the day you file change of status to F2".

Sure, I have been on my company's payroll even after 9/17/2011 the day my previous H1B/I-94 expired. So, that would not be a problem.

What I understand from the point you mentioned above (4) is that, for instance if my COS application arrives at USCIS on Nov 3, 2011, I may resign from my current company effective that date, and still I will be legal to stay in the US as long as USCIS takes a decision on my COS application.

5. A sub part of question 4.

My company demands a 3 weeks advance notice before someone resigns. In that case, let's say my COS application arrives at USCIS on Nov 3, 2011. And I give my current company a 3 weeks notice for resignation the same day. In this scenario, am I legal to work in the US for 3 more weeks on H1B from Nov 3, 2011?

OR

Is the date Nov 3, 2011 MUST be my last working day with the current company.


Sorry to bombard you with plenty of questions. I would greatly appreciate if any helpful information is provided.

Thank you

#4 livliv

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Posted 19 October 2011 - 02:39 PM

1. You are right.
2. A cover letter explaining everything will be useful.
3. USCIS will know. They will adjudge extension first and COS later.
4. You are right.
5. You can work for 3 weeks or more. You cannot work once COS to F2 gets approved.

It is not an easy matter, I will advise you to consult an experienced lawyer if possible.

#5 sangeet28

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Posted 20 October 2011 - 05:17 AM

Thank you very very much for all your help livliv. I am on my way to consult one. Again, please accept my sincere gratitude.


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