Applying for H4 after OPT is denied on F1

[gouthamrgg]

Hi, my wife came here on H4 and applied for F1. She finished her MS from UNVA(University of Northern Virginia). I don't how many people know but there has been immigrations issues and raids going on from last year in that school. Last week her OPT was denied along with many other students. USCIS stated that they are denying the OPT because their school did not have a document.

So, now we are looking for options so she can stay in status. Can we apply for H4 again? If yes, does she have to go back to India for stamping again? She still has her H4 stamping valid till Sep 2012 from last time. She never went to India after coming here in 2009.

Please let me know if there are any other options that any of you guys are aware of.

[shervin143]

If she has a valid H4 visa stamped in her passport, then she can leave the country and return back in H4 visa. There is no need to get the H4 stamped again. She will get a new I-94 at the POE which will put her back into H4 status. She will need to carry your latest H1B approval notice. Al;so, she will have to return all her I-94s when she leaves the country.

[gouthamrgg]

Thanks for the reply. So, she can still travel with the existing stamping but she has to apply for change of status from F1 to H4 before leaving right? Changing from F1 to H4 means we have to file an I-539 again? I remember doing that when we applied for H4 to F1.

Any idea of what documents they might ask for this process?

Thanks...

[shervin143]

Is she currently maintaining her F1 status? If not, a COS from F1 to H4 is not possible. If the COS from F1 to H4 gets approved, then there is no need to ravel outside as the COS will come with a new I-94.

If she wants to quickly get back to H4 status, then she should leave the country and retun back in H4 visa using your H1B approval notice. There is no need to file for I-539.

[gouthamrgg]

She is maintaining her F1 status. But as her OPT is denied I think she has 30days of grace period. We do not know exactly how many days as we have not received the official denial letter yet. We are planning to go to India anyway for a wedding in the family. So, you think we do not have to apply I-539 in that case? She can just go to India and come back with my I-757 copy?

And on another note, My existing H1-b is valid till end of September,2012 with the same stamping on both my and my wife's passports. I am planning to apply for H1-B extension at the end of March. Do you think that affects us in anyway?

Thanks again for the information. I really appreciate it.

[shervin143]

When exactly are you planning a vacation. If it is not immediately, then yuo will have to file a COS from F1 to H4. Otherwise she will go out of status on F1 and that will cause issues in the future. Btw, you are not suppose to leave the country when an extension is pending with USCIS. Either file the extension, get the approval and then travel or return back from your vacation and then file the extension. The I-94 that you and your dependents will receiev at the POE will be as per the approval notice.

[gouthamrgg]

She will be going to India in a couple of weeks(before her grace period is over). Taking what you said about not leaving USA when an extension is pending with USCIS, do both of us have to be in USA when applying for an extension? Or can I apply for the extension after coming back and send her the copy of new I-797? If yes, Would she need stamping in that case?

I know we do not need stamping for H1 if we change employers but still has valid H1 stamping but as she changed from H4 to F1 first and now planning to go back again it is very confusing.

Thanks...

[shervin143]

She will be going to India in a couple of weeks(before her grace period is over). Taking what you said about not leaving USA when an extension is pending with USCIS, do both of us have to be in USA when applying for an extension?
>>> The person who has a pending petition (extension or a change of status) pending with USCIS should remain in the country until a decision is made by USCIS. So i fyou file only your extension, then only yuo need to stay.

Or can I apply for the extension after coming back and send her the copy of new I-797?
>>> Yes, you can do that. There is a premium process that will get you the resulyt witin 15 days if you don't want to wait for 2-3 months by filing in normal process.

If yes, Would she need stamping in that case?
>>> H4 stamping is required only if she doesn't have a valid H4 visa in her pasport as of the date of her return.

I know we do not need stamping for H1 if we change employers but still has valid H1 stamping but as she changed from H4 to F1 first and now planning to go back again it is very confusing.
>>> There is no difference. All you need is a valid visa and associated petition (H1B in case of returning in H4) to return back.

[manamaruti]

Hi, my wife has similar case as above, but she does't have H4 stamping. Initially she came on L2 and converted to H4, after sometime she again converted to F1 and now her OPT got denied due to UNVA college issues. My question is, can she apply for F1 to H4 conversion being in US ? Please advice.

[gouthamrgg]

First of all Thank you Shervin143. You gave really good and helpful information.

And Maruthi in your case from what I have been researching so far, I have to say you have some more bad news. As your wife doesn't have a H4 stamping, she can not leave the country if she wants to change the status. Instead she has to apply for a change of status from F1 to H4 by staying here. But I heard from a couple of attorneys that it might not be as simple as filing an I-539 because of UNVA. First reason for OPT denial is that the students who worked on that school's CPT did not maintain legal F1 status. This might become an issue when we apply for a change of status. You can still take that risk by staying here or you can try applying for a fresh H4 by going to India. I heard that now UNVA is saying they will provide more documents to reopen the cases. But I say that's just bull. If they did not have the Co-op agreement at the time of employment there is no way the students can win the reopening of the case....

But again like anything that has to do with USCIS, everything is a chance. We know of students who got OPT even after working for 9-11 months on CPT and also who did more than one online course in a quarter. So, consult a good attorney and then think about what you can do that is the safest. As of our case, my wife is going to India in 10days.

Good Luck for you guys...