I-130(F2A) and Applying for F1

[ngodugu]

Hi All,

My husband is currently on H1-B that is set to expire in Aug of this year. His current employer has refused to extend his H1-B by filing for GC.

I am a LPR( have been only for a Year). The only option for him to stay in the US is to apply for F1. He has always wanted to do a PhD so that seems like a good option for him.

Before we knew about his predicament, we filed for I-130(earlier this year). Given that he plans to apply for F1, I am not sure whether having a pending I-130 in his name will adversely affect his chances of being approved when we file a change of status. At the same time, we have a place in the line(a long 2.5 year wait but still) that we want to think twice before withdrawing the I-130 application. Even if we withdraw, we are worried that it might still affect his F1 COS application adversely given that I am an LPR and the fact that we have filed a I-130 once.

Should we withdraw the I-130? Is there anything we could do(supporting documents etc) to ensure the F1 COS is approved?

Thanks in advance

Neelima

[t75]

F1 may NOT have immigrant intent. You cannot do anything to insure COS is approved. You being a\n LPR is intent enough to show his immigrant intent.

[catx]

There is a good chance your husband will not be able to get a F-1 visa because you are a permanent resident, regardless of the I-130 petition.

A F-1 visa does not allow immigration intent, and a spouse being a permanent resident represents an intent to also become a permanent resident (immigrant). Further, it is up to the potential F-1 beneficiary to affirmatively demonstrate that they do not have an immigration intent. (In other words, the USCIS infers immigration intent, and it is up to the potential beneficiary to demonstrate through ties to ther home country and a lack of ties to the U.S. that they will be returning to their home country upon completion of their studies.)

[ngodugu]

Thank you for your reply. This is what we were worried about.

I am just curious as to why this is a rule. If you are in the US married to an LPR but have the urge to pursue higher learning, it does not seem like there is an option provided my the USCIS. I am sure this happens often. It does not seem to leave any alternatives at all.

[JoeF]

Thank you for your reply. This is what we were worried about.

I am just curious as to why this is a rule.

The F1 is for people wishing to study in the US and returning to their home country after finishing their studies.

That's how the law-making body in the US, the US Congress, intended it.