Perm not approved yet, so huband going to F2.

[lux_sup]

Hello,

My husband 's PERM was filed in March 2012 , and was denied in June 2012 . We have applied for recapturing and so we can stay till Dec 2012. But since we havent received any updates on our PERM status, we are thinking of applying for "F1(student) visa for me" and "my husband can stay on F2(dependent)" till March 2013. . So that we could continue staying in US and also continue our GC with another employer who is ready to file GC for us.

So my question is how long does the process of chaning from H1b to F2 take for my husband?

Will he have any problems with going back to H1b again ?

Will this affect our GC process?

[t75]

March 2013 date makes no sense.

PERM was denied for a reason. Unless that changes, your DH has no hope for a GC even with a new employer.

GC can be processed while you are outside the US. Are you really planning to be a student?

[catx]

In addition to what @t75 posted, F (student and student dependent) visas do not allow dual immigration intent, and would be denied because your permanent residency (green card) process is a clear demonstration of immigration intent. In addition, a F-1 visa affords only limited, restricted employment authorization, and a F-2 visa does not allow any work authorization. You could not work for another employer on F visas..

[chakrakr]

In addition to what @t75 posted, F (student and student dependent) visas do not allow dual immigration intent, and would be denied because your permanent residency (green card) process is a clear demonstration of immigration intent.

There is NO immigrant intent established here. PERM was denied NOT 140. 140 (and 485) establish the immigrant intent NOT PERM

[catx]

There is NO immigrant intent established here. PERM was denied NOT 140. 140 (and 485) establish the immigrant intent NOT PERM

The USCIS can, and does, infer that a PERM labor certification application, whether approved or denied, is a demonstration of immigration intent, as it is the necessary first step toward the actual permanent residency (green card) immigration process. Immigration intent is an interpretive assessment, and the USCIS can even consider a lack of ties and willingness to return to one's country of origin, regardless of any immigration filings, as immigration intent.

[chakrakr]

The USCIS can, and does, infer that a PERM labor certification application, whether approved or denied, is a demonstration of immigration intent, as it is the necessary first step toward the actual permanent residency (green card) immigration process. Immigration intent is an interpretive assessment, and the USCIS can even consider a lack of ties and willingness to return to one's country of origin, regardless of any immigration filings, as immigration intent.

Lack of ties -- yes. but that has NOTHING to do with PERM/140 et al. It is same for any other applicant

coming back to PERM -- PERM simply establish that there is a lack of US qualified worker . A petition has NOT been filed during PERM. You do not even have an A number. When completing a Visa form, there is a question -- Has an immmigrant petition been filed for you ; and if a 140 has not been filed, the answer to this is NO. Again, PERM is NOT a immigrant petition and DOES NOT establish an immigrant intent -- heck a denied PERM is probably not even available to USCIS.

[rahul412]

There is NO immigrant intent established here. PERM was denied NOT 140. 140 (and 485) establish the immigrant intent NOT PERM

But PERM is the initial step towards GC. So filing PERM is nothing but willing to stay permanently in US in future, isn't it?

[JoeF]

There is NO immigrant intent established here. PERM was denied NOT 140. 140 (and 485) establish the immigrant intent NOT PERM

As per the laws, every foreigner is considered an immigrant, unless and until the person can convince the officer otherwise.

So, there is no need to "establish immigrant intent." There is a need to establish that a person does not have immigration intent.

For an F1, a person has to establish that the person has a residence abroad that the person has no intent of abandoning.

INA 101(a)(15):

(15) The term "immigrant" means every alien except an alien who is within one of the following classes of nonimmigrant aliens

...

(F) (i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 214(l) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States, particularly designated by him and approved by the Attorney General after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn

[catx]

Asserting that the filing of an I-140 petition is the first evidence of immigration intent may be strictly true. However, immigration intent is just that -- the "intent" to immigrate, and does not have to mean the actual process. It is an interpretive assessment, and the filing of a PERM labor certification application is effectively the first step in employment based permanent residency (green card), and therefore a demonstration of immigration intent.

While the question on the visa form may not need to disclose that a PERM labor certification application has been filed, in any subsequent interview (university DSO, consulate, port of entry) the question may be asked and could well result in a F-1 visa denial or revocation.

[lux_sup]

So from the above argument, I guess its a bad idea for us to go for F1/F2 visa. I think its not worth the efforts , as we will be risking our future prospects of coming back to US too. Thanks for all advice.

One more question, As per the attorney, my husbands Perm was denied becoz it was a "govt error". and from what I ve read on websites, govt errors have to be replied within 45 days by the govt. and in our case its been more than 45 days now. Does that mean it was not a Govt Error? Does that mean attorney was worng? and we ll never get our Perm approved?

[catx]

The first point to keep in mind is that the PERM labor certification application is the employer's process, not the employee's. Only the employer or their attorney can take action (e.g. appeal) and inquire as to the status. The following information in an online article should help with your questoins.

"DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline. However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the “government error” queue or under the regular appeal queue. As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response. If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue. If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue (see above for processing times)."

[chakrakr]

As per the laws, every foreigner is considered an immigrant, unless and until the person can convince the officer otherwise.

So, there is no need to "establish immigrant intent." There is a need to establish that a person does not have immigration intent.

For an F1, a person has to establish that the person has a residence abroad that the person has no intent of abandoning.

INA 101(a)(15):

Sure ... but a denied PERM does not cause any additional "immigrant intent". catx's argument was filing a PERM is a sure reason for denial of F1. That is Incorrect.

[chakrakr]

Asserting that the filing of an I-140 petition is the first evidence of immigration intent may be strictly true. However, immigration intent is just that -- the "intent" to immigrate, and does not have to mean the actual process. It is an interpretive assessment, and the filing of a PERM labor certification application is effectively the first step in employment based permanent residency (green card), and therefore a demonstration of immigration intent.

While the question on the visa form may not need to disclose that a PERM labor certification application has been filed, in any subsequent interview (university DSO, consulate, port of entry) the question may be asked and could well result in a F-1 visa denial or revocation.

There are a lot of "may be" in your current statement (the earlier one was "will be") . So you are now saying you are not sure if PERM will cause a denial of F1 ? Are all your may be s based on some Attorney blog or articles OR just your opinion ?

I regularly attend the community conference call of Attorneys and one Attormey (K) has categorically mentioned that PERM does not establish immigrant intent. Unless you have a attorney/legal reference, OP should not rely on your opinion and go for an Attorney opnion. OP many attorneys (including Attorney Murthy) conduct free community call/chat. Attend those and pose this question. I am sure PERM will not cause a F1 denial (you will still need to establish funding, home abroad etc.)

[chakrakr]

Asserting that the filing of an I-140 petition is the first evidence of immigration intent may be strictly true. However, immigration intent is just that -- the "intent" to immigrate, and does not have to mean the actual process. It is an interpretive assessment, and the filing of a PERM labor certification application is effectively the first step in employment based permanent residency (green card), and therefore a demonstration of immigration intent.

While the question on the visa form may not need to disclose that a PERM labor certification application has been filed, in any subsequent interview (university DSO, consulate, port of entry) the question may be asked and could well result in a F-1 visa denial or revocation.

And BTW, NO PERM was filed for OP. It was filed for her husband. Strictly talking about GC process, OPs immigrant intent would have been documentarily established only when she files 485.

[catx]

Respectfully, I do not need to get into a debate on what is a voluntary forum. I participate on this forum as a way of staying 'engaged' in the immigration process since I am at the "wait and see" / "please stand by" stage (approved I-140 petition, EB3), and it is hosted by a reputable, knowledgeable immigration legal firm with factual posting from attorneys.

My posts are based on my experience over the past many years living in the U.S. with the hope that they may help. As I have posted on numerous occasions the best advice is to not rely on what I or others have said, but consult with a qualified, experienced immigration attorney.

With regards to the current topic, the two immigration attorneys I have and am working with (one with my original employer and the second with the company that acquired my original employer), who I know are reputable, qualified, experienced, both advised that I should not (and they would not) proceed with any part of the permanent residency (green card) process, i.e. the PERM labor certification application, until I changed to a visa that allowed immigration intent (e.g. H-1B). They clearly stated that (i) the law did not allow me to pursue permanent residency under my initial visa as it did not allow immigration intent, and (ii) even starting the process (PERM labor certification application) would put me at risk of having my initial visa revoked for immigration intent.

[chakrakr]

With regards to the current topic, the two immigration attorneys I have and am working with (one with my original employer and the second with the company that acquired my original employer), who I know are reputable, qualified, experienced, both advised that I should not (and they would not) proceed with any part of the permanent residency (green card) process, i.e. the PERM labor certification application, until I changed to a visa that allowed immigration intent (e.g. H-1B). They clearly stated that (i) the law did not allow me to pursue permanent residency under my initial visa as it did not allow immigration intent, and (ii) even starting the process (PERM labor certification application) would put me at risk of having my initial visa revoked for immigration intent.

That's interesting ! "Change of intent " is very common in immigration law. Even a person entering on B1/B2 can file for a GC after (say) 90 days and it will be considered as a change of intent. To start GC process, you do not need ANY visa not even H1 ... heck GC can be started without ever putting your foot on US.

[t75]

Back to OP's original problem, her DH does not even have another employer. She is filing for F1 simply to remain in the US. She needs a reality check that it is in their best interest to make other plans since the one she proposes has many "issues" that are stacked against them.