Immigration Issues/F1 Restamping

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Question
Hi,

I came to US in may 2010 on an H4 Visa. I enrolled for an MS program and applied for COS in November 2012. I got it approved and now I have an F1 Visa.

My husband came on H1 with Wipro technologies and later changed his employment ad is a full time employee with a well known firm. He has got his H1 extended for another year.

We were planning to visit India this November. Both of us have to get passports re-stamped. My husbands employer has recently started his GC application.

Am I taking a big risk by visiting India for F1 stamping? By the time I am in India I would only have 2 courses left to finish MS. I have not applied for OPT and do not plan to until I come back and finish my course. FYI I have a 2.5 year old daughter who is a US citizen.

If my F1 stamping is rejected can I come on H4. How easy is this option? and how long would it take?

Some friends suggested going to Canada for re-stamping. Is this an option we should consider?

Best Regards,
concerned student

Answer
Hi,

There is a risk that the Consulate in India will not issue you an F1 visa stamp since it may determine that you have an intention to immigrate to the U.S., and this intention is not compatible with F1 visa status. However, the Consulate should issue you H4 visa stamp if they do not issue the F1 visa stamp, since H1B and H4 visa status allow for intention to immigrate to the U.S. You can study in H4 visa status, but will not be eligible for OPT. It will probably take a couple of weeks to make the appointment for H4 visa stamping at the Consulate if the F1 visa stamp is denied.

You can apply for the F1 visa stamp at any of the U.S. Consulates in Canada. The odds are quite good that the Consulate will issue the F1 visa stamp (better than in India, esp. since you will not be applying around the same time that your husband applies for H1B visa stamp). Alternatively, you can apply for H4 visa stamp in Canada after your husband has been issued H1B stamp in India.

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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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