Immigration Issues/H-1B to F1 09_20_08


QUESTION: I am currently on F1-OPT (end date mid-Feb '09). My F1 visa is valid until Nov. 2010. My H1-B from academia is pending approval. If it is approved, the start date would be mid-Dec '08. I plan to pursue higher studies from August 2009. Pls note that the OPT extension for me is ruled out as my employer is not part of the e-verify system.

My questions are as follows:

1) How can I convert from H1-B to F1 within the US?

2) How can I convert from H1-B to F1 outside the US? what are the risks involved? I will be taking just one trip back home in 2009 whereby I would either need to have my academic H-1B stamped in my passport or have a new F1 stamp?

3) If my F1 visa is denied in my home country- India, does my valid H-1B work permit also stand canceled.

4) If my F1 is approved from home country what is my re-entry status into the US ?

ANSWER: Ellee,
1) You need to obtain a fresh I-20 and file for a change of status from F to H using form I-539.

2) To obtain a F-1 visa you need to do follow the same process that you did to get your current F visa.  To enter either on H or F after your change of status to H, you are right you need a valid H or F visa. I am not in a position to evaluate your risks.

3) No. You can obtain a H visa and enter the US on H status.

4) Your status would depend on what visa you use to enter the US.

Please note to enter either on H or F you should have the intention to follow the requirements under that visa.

Ramasamy Krishnan

---------- FOLLOW-UP ----------

QUESTION: Dear Mr. Krishnan,

Thank you for your response. In the vein of the above discussion, would you recommend that I schedule two visa interviews with the US consulate in India?

1) First, to get my H1-B stamped so that I have a valid H1-B to re-enter US in the event my F1 is denied.

2) A second interview for a fresh F1 based on the intended program of study.

II) My other question is regarding the consulate in India for the interview/s. I have lived all my life in Mumbai. While I have been in US for 3 years now, my family moved to Kolkata. I understand that there is a 6 month residency requirement in the state where the consulate is based. My family has been there for 3 years but I haven't. Is it possible for me to schedule my visa interview/s with the Kolkata consulate?

III) Given my situation, I have also been advised to apply for a greencard such that I don't have to go through the hassles of change of status from H1 to F1 to obtain higher education.

When would you recommend filing for a green card application? First term of H-1B? or the second 3-year term of H-1B?

Is it true that if one filed for a GC during first term of H-1B , extension of H-1B for a second term (while the GC is in process) is a risk due to non-immigrant and immigrant visa issues going on at the same time.  

Thanking you in advance for your valuable time and advice.

You will not be allowed to schedule two interviews if this is allowed the US consulate will cancel the first visa before issuing you the new one.

You should be fine to apply in Kolkata providec you give your address in Calcutta.

You can file for your green card at any time.  

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Ramasamy Krishnan


Immigration particularly business immigration and National Interest Waivers.


I have over 7 years of experience in all facets of immigration law. Specifically focusing on filing of National Interest Waivers (NIW), Alien of Extraordinary Ability and Outstanding Researchers/Professors petitions for Ph.D's and other advanced degree professionals. I have also assisted clients in numerous PERM, H-1b, L and other nonimmigrant visa applications. I am a partner at the law firm Ashley & Krishnan,

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