H4 to F1 COS and I485 pending

[chintu45]

Hello,

Question is regarding travelling outside US. This is the scenario:

My wife did H4 to F1 (COS) in Dec 2011. But she never traveled outside US. So she doesn't have F1 VISA stamp. She is still going to school till Dec 2012.

Meanwhile we got approved for EAD/AP in May 2012 and now we are on I485 pending status. I am the primary applicant for I485 and I have the approval as well with H1B valid till Oct' 2013.

Q1. If she travels outside US, does she need to apply for F1 VISA?

Q2. At POE can she show AP and re-enter or does she needs to have a (H4 or F1) VISA?

Q3. Should we apply for F1 to H4 COS or would it create more complications to the case?

Q4. What will be her status once she comes back (let's say without H4 or F1 VISA)?

Gurus pls advice...

Thxs,

[pontevecchio]

1. She will not get a F1 visa.

2. She can enter with the AP

3. Why would she need H4 status?

4. Awaiting AOS on the orders of the AG

She can study while awaiting AOS. She needs to discuss the matter with her DSO.

[Belle]

1. No. She should not apply for F1 visa because that visa does not allow immigrant intent.

2. She may enter on AP. She may enter on H4. She should not enter on F.

3. There is no need unless you are reasonably sure your permanent resident applications will be denied.

4. She won't have status. She will be paroled into the country to wait for her I-485 adjudication and will be in authorized presence.

[chintu45]

Belle & Pontevecchio,

Thank you for response.

She will enter only on AP and not on any other VISA.

[aruche]

Chintu45

From the information you gave it looks like your wife did COS from H4 to F1 after your I140 was approved. I would be really appreciate if you tell me how did she go about it? Did she give any cover letter along with I539 stating her non-immigration intent?If so, what did she write? Was there any problem in doing COS?Did USCIS check your records to see if your wife has immigration intent?

Thank You

[Belle]

I would assume she had ho issues whatsoever in filing I-485, and did not have to explain anything.

[chintu45]

Aruche,

I am assuming you also have I140 approved and not filed I485 yet.

Yes we did COS after my I140 approval and we had an RFE (just usual supporting documents; nothing critical).

If you ask the Int'l advisor of the school, they would give you a checklist of things you need to sent to USCIS.

The cover letter should indicate why do you want to change; you can mention it would help to get some experience while pursuing the coursework. If the units are accounted towards degree, they it would be an added benefit.

There should be no issues for COS, since you are the primary applicant and nothing so far on your petition indicates your spouse's information. The spouse will be added on I485.

[aruche]

Thank You Chintu45.

In my case, my spouses' employer has filed for GC and I am the dependent. I am not sure if my name is included in the I140. I will check that. My only worry is if changing to F1 will cause a problem later on when filing for I485 as F1 being a non-immigrant intent visa although I don't expect us to become current anytime soon (PD in 2011). I would have finished my education before I become current.

[chintu45]

In that case you will need to look for sponsor if you finished your education or you may convert back to dependent VISA if PD doesn't become current.

I may suggest checking with lawyer before proceeding...