F1 to H4 (issue with status for 45 days)

[apurvaas]

Hey guys

I am currently on my F1 OPT (ending in Mid june 2011)

My wife is also on opt and got a job at hospital (as an analyst) and they filed her h1b in may with premium processing and it was approved and she got i797a with new I94 .

The lawyer filed my i539 form and I also received my I797A for H4 which mentions the start date from Oct 1, 2011 to Sep 2014.

My OPT grace period will end in Mid Aug 2011. Can I stay in US and go to india for h4 stamping in December or I have to go back in mid august and come back when my wife comes to India for her h1b stamping?

I talked to my lawyer and he said my status should be fine. I have been to USCIS field office and the guy said "I dont think that there is a problem if you stay in US but make sure with State Dept ". I called state department and they said its the matter of USCIS.

Please let me know what should I do?

Travel to india in Aug and wait for my wife's h1b stamping?

or Stay in US and get stamping done when we visit india in december?

Thanks

[apurvaas]

Can anyone answer the question?

I need to take a decision in 3 days!

TIA

[kalyan2985]

You can apply for STEM OPT Extension if your OPT is expiring. or if you are in STEM OPT which is expiring then you have three options

1. Do something to be here and maintain status like apply h1b and continue staying on Cap Gap or join some school.

2. Go back to India to get your H4 Visa stamped and come back in Oct.

3. Or as you have the grace period of 60 days after OPT which you said is expiring in Aug, you can still stay here as your H4Visa which kicks in from Oct 1st which is already approved.

[kalyan2985]

And one more thing you need not wait for your wife's h1b stamping to get your h4 visa stamping you can go in Aug for h4 stamping though you can back only in oct, as h1b is approved.

Also, please consult others for opinion.

Thanks.

[apurvaas]

Hey

Thanks for reply!

My opt is ending in June mid week so 60 day grace period will end in mid august!!!

I am not eligible for stem extension as I did masters in public health...

So I may be considered out of status from august 16 to October 1...

I have approved i797a with new I 94... My question is can I stay without enrolling in school?

I was told by vfs that they won't stamp my h4 until my wife gets her stamping done!!!

[kalyan2985]

No, you cannot stay.

I'm 99% sure that you can attend h4 visa with h1 approval, stamping on h1 is'nt needed...