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

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Question
Dear Mr Singh:
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
Dear Jessica:
If you are going to take benefit of the I-140 filed by your ex-employer, you will have to mention it; and if not, you may seek withdrawal of the petition - mention and state withdrawn.  However, I believe since you are already in the US you may not have a problem in COS to F1.  

I would suggest you apply COS to F1 in advance to be able to get a decision before expiry of current H1C.  

Best wishes,  

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AJAY SINGH

Expertise

Questions regarding Immigration to United States, including Removal/Deportation Proceedings, Asylum; Green Card through Family (Fiance/ee Visa, Spouse, Children, Parents, Siblings); Green Card through Employment (Labor Certification - PERM, Extra Ordinary Ability - EB1, Religious/Entrepreneur - EB4/EB5); Non-Immigrant Visas - H1B, L1, F & M, J1, J1 waiver, Humanitarian relief (Cancellation of Removal, Prosecutorial Discretion, TPS, Dream Act); Hardship Waiver (I-601/212) etc., are welcome.

Experience

Dealing with clients seeking immigration help since year 2001. Main area of practice is Immigration Law.

Organizations
Member - AILA. Bar Council of India.

Education/Credentials
LL.M - Benjamin N. Cardozo School of Law, NY. LL.B - Campus Law Center, University of Delhi, New Delhi.

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