Urgent suggestion request

[meenakshi_1948]

Hi I came to US on F2 Visa in 2010. I applied for a change of status from F2 to H1B in April 2011 under 2012 quota. I received my receipt # on june 8th 2011.Mean while my husband's visa status changed to H1B from F1-opt on 27st of June 2011 and which makes my F2 status invalid. As I am already on change of status by then and because of last action rule we didn't apply for H4 status due to the uncertainty on the H1B application decision. I have the following question.

1) Is my stay in US legal as my COS to H1B is under process. If my stay is legal, how many days would it remain legal?



Please advice. Thanks in advance

[kabkaba]

You are inviting status complications here.
Even if your H1 gets approved with change of status, the start date will be Oct 1. Your F2 status is invalid from June 27 to Sep 30 and now that this date is past you cannot even change to H4 status from within the US.
You should consult an experienced immigration attorney and explain your case in detail to them. In my opinion you should leave the US and return with an H1 Visa whenever the petition gets approved, upgrading to premium can get you a decision in 15 days.

[meenakshi_1948]

Hi Kabkaba, Thankyou very much for the reply.
I would take your suggestion of speaking to an experienced immigration attorney. I just have one more question.

1) As you said from June 27th to Sep 30th my F2 status is invalid as my husband is no more on F1 and if my H1B is approved it gets activated on Oct 1st. Does it mean that my stay after June 27th would turn out illegal even though my COS to H1B is in process? or does that mean if my H1B is approved before Oct 1st then my stay would become illegal from that point of time to Oct 1st as I would not hold any valid visa.

[kabkaba]

It is altogether possible that H1 may be approved without change of status.

[meenakshi_1948]

Hi Kabkaba, Thank you for the reply. Would you please help me by clarifying me on the below questions.

1) If my H1B is approved and change of status is not approved, that means I need to go back to my home country to get my visa stamped to H1B and then come back to US. Please suggest whether this correct.

2) Does that also mean that my stay now in US would become illegal if H1B is approved and change of status is not approved?

3) Does this period of stay create any problems to me when I go to stamping in my home country?

[shervin143]

1) If my H1B is approved and change of status is not approved, that means I need to go back to my home country to get my visa stamped to H1B and then come back to US. Please suggest whether this correct.
>>> That is correct. In that case, any time spend in U.s after the current I-94 expiry date will be treated as illegal stay.

2) Does that also mean that my stay now in US would become illegal if H1B is approved and change of status is not approved?
>>> That is correct.

3) Does this period of stay create any problems to me when I go to stamping in my home country?
>>> It can. It depends on the VO.

[meenakshi_1948]

Hi Shervin, Thanyou very much for a quick reply.

After my visa expired on June 27th 2011, I stayed in US as I was told that it would be legal to stay in US when my Change of status is already in process.

1) My H1B COS is still under process, If I leave US at this point of time, would my stay from June 27th till today be considered illegal at the consulate at the time of stamping if my H1B is approved.

2) If my H1B is approved with change of status then also is my stay in US considered to be illegal

Please advice. Thanks in advance

[shervin143]

If the COS is filed prior to the current status expiry date, then you are allowed to stay in U.S until a decision is made. However, if the COS gets approved, then you are all good. If not, then the time spend in U.S after the I-94 expiry date will be considered as illegal stay.

The chances are that the H1B petition might get approved for consular process (without a new I-94) since you have a gap from the current status expiry date until Oct 1st. In such case case, the time spent in U.S after the I-94 expiry date is considered illegal.

If the H1B gets approved as a COS (with new I-94), then the effective date will be Oct 1st (Since it is a fresh H1B petition) and the time between your current I-94 expiry date until Oct 1st will be considered as illegal stay.

[meenakshi_1948]

Hi Shervin, Thank you very much for the reply.

1) How can we know whether our petition is accepted with COS or with out COS. Does USCIS send any document related to that?

2) If I go back to my home country immediately as a precautionary measure to avoid any illegal stay in case my COS is not approved and if my H1B gets approved when I am in my home country, can my stay in US for all these days and the reason I came back to home country in the middle of the process be defended and justified as a legal stay at US consulate.

3)Does my going back to my home country in the middle of the process also affect my H1B procesing and stamping of visa at US consulate.

4) I need an advice on which would be the apt measure in my case now.
Is it better to go back to my home country or stay in US till I know the decision on my H1B. Please suggest me.

Please advice. Thanks in advance

[shervin143]

1) How can we know whether our petition is accepted with COS or with out COS. Does USCIS send any document related to that?
>>> If approved, they will send you the I-797 approval notice. If I-797 has a I-94 attached to it, then it is a COS. If not, then it is consular process.

2) If I go back to my home country immediately as a precautionary measure to avoid any illegal stay in case my COS is not approved and if my H1B gets approved when I am in my home country, can my stay in US for all these days and the reason I came back to home country in the middle of the process be defended and justified as a legal stay at US consulate.
>>> No. Any time spend after the I-94 expiry date until the date you left the country will still be considered as illegal stay. The more the illegal stay, then more the issues.

3)Does my going back to my home country in the middle of the process also affect my H1B procesing and stamping of visa at US consulate.
>>> No. When the H1B gets approved, get it stamped and return back in H1B visa.

4) I need an advice on which would be the apt measure in my case now.
Is it better to go back to my home country or stay in US till I know the decision on my H1B.
>>> Like I mentioned earlier, your chances of a successful COS is very less since you hold no valid status until Oct 1st. It is advisable to go back to the home country or consult a good immigration attorney.