Immigration Issues/F2 to H4

Advertisement


Question
QUESTION: I am on my OPT working in NJ for xyz company. My wife has recently gotten an F2 VISA in March (It has an expiration date of 27 Feb 2018, My F1 VISA Expiration is 28 August 2013, my OPT though expires in October 2013 ). My company is filing for an H1 when the window opens in April this year.
Here are my questions,

1) Given she should enter to USA as soon as possible? Should i file for a h1 and H4 jointly on April 1st when the H1B window opens. Given that she has just gotten her F2, what are the risks of filing so soon (Immigration Intent wise)? Should we delay filing for the H4, and will it make a difference?
2) If we file jointly for H1 and H4 (under the expedited process), will USCIS give a decision on both in 15 days or will H4 COS be processed separately, and hence would the H4 be subjected to longer processing time?
3) If her H4 is rejected will her F2 still be valid till the visa expiration date? or she can come while both application h1 and h4 is on pending status?
4) If my H1 gets approved  while she is in India, So she has to go for H4 stamping? or she can come to USA and than i can apply for her h4 from here?
Please reply me all possible way how to maintain her status.

ANSWER: Hi,

Your wife should not file an application to change status from F2 to H4 within 2 months of entry to the U.S., as this could be construed as "fraudulent entry".

In any event, your H1B petition should be filed at the beginning of April to maximize inclusion within the visa cap.

Since it is anticipated that your H1B approval notice will indicate validity date of October 01, 2013, your wife can enter the U.S. and remain in F2 status until September 30 as you will hold F1 status until Sep. 30 no matter when your H1B petition is approved, as the effective validity date will still be Oct. 01. Her application to change status to H4 can be filed anytime between the date of your H1B filing and prior to Oct. 01, and she can remain legally in the U.S. even if the application granting her change of status to H4 is approved in, say, December. She will not be required to depart the U.S. as she will have been granted change of status to H4.


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

QUESTION: Thanks for you quick response. I really appreciate your time for me. I am just confused so want to ask clearly that should i apply for her H4 along with my H1 application on April 1st? if she come in April while my application is under review or let say its already been approve so she can enter in F2 status? I understand that my H1 will start from 1st October 2013 but still if my H1 approve she will consider as F2 (my dependent) until 30 September 2013? She got visa for 5 year till 2018. Just confusing that is there any problem while she enter to USA if my status goes from F1 to H1? Once again thanks..

ANSWER: An application requesting change of status from F2 to H4 cannot be filed with the USCIS for your wife unless she is physically present in the U.S. If she enters the U.S. on her existing F2 visa stamp, it is recommended that she wait about 60 days to file the change of status application to H4, and this change of status application can be filed either based on your pending H1B petition, or H1B approval. There will be no problem with her entry on F2 visa until Sep. 30.

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

QUESTION: Thanks again Ajay for your quick response and i really appreciate it. Just last question once she arrive in US. Is that necessary that i have to wait at least 60 days and than after i apply for her H4 or i can apply before that? This 60 days count start on the day she arrive in US?

Answer
It is recommended that she wait 60 days after her entry to the U.S. to file application changing status to H4. However, if she enters in, say, August or September, she must file change of status application to H4 no later than Sep. 30, so in this scenario it is OK if she waits less than 60 days.

Immigration Issues

All Answers


Answers by Expert:


Ask Experts

Volunteer


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.

©2016 About.com. All rights reserved.