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Immigration Issues/Spouse Visa Question F2 vs H4

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QUESTION: Ajay,

I have completed MBA Technology Management in May 2011. I am on OPT (f1) since July 1st 2011 to June 30th 2012.I am working at one of the well known financial firm. I got H1b approval on 5th Nov 2011. H1b effective date is  April 4th 2012

I got married in February 9th 2011. My wife is Physical therapist and has done Masters in India. Currently she is in India. She is also planning to take NPTE exam (license exam for PT) in March so she will be eligible to get work in USA

Question:
1. is it ok to apply for F2 visa for her, as i am on OPT until April 4th 2012? What would be the possibility of getting visa?
2. Do we need to wait until April 4th 2011 and apply for 4 visa?
3. What would be the ideal thing to do?

ANSWER: Hi,

Your wife can apply for F2 visa stamp now, as you are still maintaining F1 status until April 04, 2012, at which point you will automatically be in H1B status. The probability is very good that your wife will be issued the F2 visa stamp.

Incidentally, the Consulate in most cases does not issue a visa stamp in passport for a dependent unless the principal family member has obtained the appropriate visa stamp in his or her respective passport. Thus, if your spouse does apply for an H4 visa stamp after April 04, 2012, the Consulate is not likely to issue an H4 visa stamp to her unless you first obtain H1B visa stamp in your passport (even though you will be in H1B status in April, 2012).

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

QUESTION: Thanks for the clarification.

Once we obtain F-2 visa for her when do we need to apply for change of status (F2 to H4), as my H1b going to effective in April. Do you think that would be the best thing to do? as i won't be able to get leave for h1b stamping and there is also risk involved in h1b stamping. What would be the best thing to do?

Answer
Once your wife has entered the U.S. in F2 visa status, an application to change her status from F2 to H4 status should be filed with the USCIS no later than April 04, 2012. She will be able to remain legally in the U.S., and will automatically be in H4 status upon approval of the application. There will be no need for either her or you to depart the U.S.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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