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Immigration Issues/COS from h4 to f1 when i-140 approved for spouse

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QUESTION: Hello - i am applying for my wife's COS from H4 to F1.I am currently on h1b with an approved I140 with dependent's name added to it. should she answer 'yes', 'no' to question 3a,3b in I-539.
Are you, or any other person included on the application, an applicant for an immigrant visa?

Has an immigrant petition ever been filed for you or for any other person included in this application?

I am getting mixed answers.some are saying NO as this is husband's petition , and some are saying YES.

what should be the correct answer , as my lawyer even says it is tricky.

Thanks for your help.

ANSWER: Hi,

It is a tricky question, but I have not come across a case where there has been a complication from answering "no." After all, there is an argument that the I-140 petition is for the beneficiary for whom the employer had (in most cases) obtained a PERM certification: www.h1b1.com/laborcert.htm and a PERM filing is exclusively for the sponsored employee and not family members.

In any event, answering "yes" on the I-539 will likely result in denial of the application to change status to F1 since F1 status does not allow for intention to immigrate to the U.S. Incidentally, your spouse can study in H4 status, but she will not receive OPT after graduation.



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

QUESTION: Thanks Ajay for the prompt answer.appreciate it.I have one more question.

Suppose she goes through COS from H4 to F1 successfully, do you see any problem in future once my PD becomes current and i add her name for AOS.
I guess USCIS won't come back saying this is visa fraud.

Looking for your expert comment.

Answer
As she will be maintaining her nonimmigrant visa status, the I-485 should be approved.

There is an unavoidable risk if she travels outside the U.S. and applies for an F1 visa stamp at a U.S. Consulate. This risk of being denied an F1 visa stamp is always there even in situations without the issue being referred to in this email.

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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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