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Immigration Issues/Change H to F visa, with I-140 approved

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Question
Dear Mr Arora:

I am a nurse from China. I have been working as a RN in Texas under H1C visa for over 2 years. I am also taking some courses in the Master program in Nurse Practitioner. I would like to change to F1 status in the fall semester and continue my graduate study. My H1C visa will expire in late Sept so I will quit my work and become a full time student then.
So I would like to apply for F visa from current H visa status. It should be easy. I got Form I-20 and I-539 from the university. But there is a problem. One hospital sponsored me I-140 in 2006 and got approved in March 2006. But it is EB3. And due to immigration backlog, I am not eligible to file 485 yet. (maybe at the end of this year or early next year, according to prediction of the current visa bulletin) I know F1 visa is non immigration visa. So do you think it is still OK for me to get F1 visa? I really would like to continue my study and graduate next year. If so, on the second page of I-539, how should I answer the first 3 questions: Have you ever filed immigration visa?
Thank you so much.
Jessica

Answer
Hi,

As F visa status does not allow for intention to immigrate to the U.S., and the filing of a Form I-140 in 2006 is an immigrant petition, the question must be answered "yes" on the I-539. The application can still be approved if sufficient documentation is provided that you have no intention to immigrate permanently to the U.S. at this time. For example, you can provide evidence of revocation of the I-140 petition by the employer, combined with evidence of a permanent address in your home country that you have no intention of abandoning. However, as this does not appear to be the case in your unique situation (you are simply waiting for the priority date to be current for visa availability in EB3 category), the I-539 will probably be denied, unfortunately.

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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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