Legal Question in Immigration Law in California

Hello,

I am on F1 visa and my wife is on F2 visa. I am currently working in a company on OPT and my employer would be filing for my H1b visa this year (2015). We also want to try for a H1b visa for my wife by finding a willing sponsor. We are also exploring the option of a masters degree for my wife and currently have an I-20 for graduate school starting in summer. I have questions regarding few possible scenarios for my wife:

i. We file a change of status (COS) from F2 to F1 in February. In April, H1b is filed. Is it safe to have a COS and H1b being processed at the same time? What would be my wife's status if both are approved at the same time? Also, What would be my wife's status if the F2 to F1 COS is approved on a later date than the H1b.

ii. We file a change of status (COS) from F2 to F1. In April, H1b is filed. Both COS and H1b are not approved, and my H1b is approved. We are able to file a COS from F2 to H4 only in September (due to some delays). In this case can my wife legally stay in US while her COS is being processed (3-4 months)? Note that my H1 would kick-in from Oct-01 and the COS approval would come after that.

Thanks


Asked on 1/03/15, 3:57 pm

2 Answers from Attorneys
Marlene Hemmings Marlene Hemmings, Attorney at Law

If both are approved, the F-1 would apply only if she begins school. The H-1B would apply only when she begins working.

If your wife does not maintain legal, non-immigrant status, then she would not be able to change status to H-4 later on. She could, however, depart the U.S. & obtain the H-4 visa at a U.S. Consulate abroad, then re-enter.

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Answered on 1/05/15, 11:19 am
Rahul Manchanda, Esq. Manchanda Law Office PLLC

Please call me at (212) 968-8600. Kind regards, RDM

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Answered on 1/07/15, 5:50 am


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