H1 to H4 and out of status question

[anuvnu387]

Hello everyone,

I resigned my job. My last date of work is August 6, 2010.

My wife is currently employed on her F1-OPT. But her H1B petition has been approved and so she will be on H1B from October 1, 2010.

I efiled (August 4, 2010) my I-539 change of status to H4 based on my wife's approved H1B petition.

The web receipt says "In addition, this receipt notice does not constitute evidence that your application
remains pending with USCIS (i.e., that a decision to grant or deny your application/petition has not yet been made)."

I consulted a lawyer briefly before I did this. He said that I could file I-539 change of status by the first week of August and then resign immediately. He also said that, It will take about 2 months for USCIS to start processing your case and therefore I will not be out of status.

Since I efiled today, I do not have the printed receipt notice yet although I do have the receipt number. I am worried that I will be out of status and this might impact my prospects of permanent residency in future. Could you please review my situation and let me know your comments?

Will I be considered "out of status" any time after August 6, 2010 (last day of work) even though I efiled my I-539 on August 4, 2010 (but do not have the official printed receipt in hand)?
Since my wife is currently in F1-OPT should I have applied for I-539 change of status to "F2" instead of I-539 change of status to H4 based on my wife's approved I-129?

Thanks for the help.

[shervin143]

Your wife's H1B starts only from Oct 1st. Since H4 is based on H1B, when the COS to H4 gets approved, it will be effective only from Oct 1st. What will be your status from August 6th till Oct 1st? You will be out of status. You should efile a COS to F2 to remain in status for the intermediate period.

[anuvnu387]

now I am worried

The lawyer whom I spoke to said that I could file for COS to H4 based on my wife's H1B approval notice and stay in US based on the Pending I-539.

That is why I decided to resign my job.

Isn't that true? I am really worried now. I am not sure if I can prepare and file a COS to F2 within the next 2 days.

Can I not stay in US with an I-539 pending even though it will be active in a future date? please confirm.

Thanks for the help.

[anuvnu387]

Hi,

I called around and I could possibly get the documents ready for Change of Status to F2.

I can e-file by August 6, 2010 and submit the supporting documents by next week.

Will this be OK? Since I already have a pending I-539 form for COS to H4, will there be problems with this new form?

Thanks again for all the help.

[anuvnu387]

I am preparing to e-file form I-539 COS to F2.

For Part 3:

Question 1: 09/30/2010 (the date until which my wife will be on F visa). From October 1, 2010 she will be on H1B and I have already filed a I-539 COS to H4.
Question 2: No
Question 3: No
Question 4: N/A

My wife's school will be giving a new I20 for my dependent application. So should I just answer No and No to questions 2 and 3?

Please help.

[ssbreddy]

Hi,

If I was in you situation, I would not have filed for H4 in the first place.

Now that this is done, if I was you then I would do the following.

1. Withdraw the COS from H1B to H4.
2. File immediately F2 based on spouse's F1 with premium processing (I know this would cost additional $1000), then I would get the result in 15 days.
3. On Oct 1st I would file another COS from F2 to H4 based on spouse approved H1B petition with normal process.

This is my personal view, please consult immigration attorney in your case.

[anuvnu387]

Thanks for the suggestion. I should not have filed for H1 to H4. Now that it is done, what are the consequences? Can I not leave it active and file another I-539 for the stay until September 30th? From Oct 1, my wife's H1B becomes active.

I thought there was no premium processing possible on change of status to "F2". It is possible for certain other categories but not for "F2". Could someone please confirm?

Thanks again for all the help.

[shervin143]

There is no premium for F2 / L2 / H4.

https://www.immihelp.com/us-visa-or-immigration-premium-processing/

Thanks for the suggestion. I should not have filed for H1 to H4. Now that it is done, what are the consequences? Can I not leave it active and file another I-539 for the stay until September 30th? From Oct 1, my wife's H1B becomes active.

I thought there was no premium processing possible on change of status to "F2". It is possible for certain other categories but not for "F2". Could someone please confirm?

Thanks again for all the help.

[anuvnu387]

thanks for confirming shervin. I have e-filed my COS to F2. I will mail a request to cancel my COS to H4.

One final question. Is a photocopy of my H1B I94 good enough? I do not have to send the original. Am I right?

Thanks a TON for the help guys.

[shervin143]

Photo copy is good enough. Later you will have to file another COS from F2 to H4 so that you don't go out of status when your spouse's status change to H1B starting Oct 1st.