Thursday, March 24, 2016

Alert from USCIS for H4: USCIS Issues Reminder to H-4 Applicants Traveling Abroad

USCIS would like to remind individuals applying for a change of status to H-4 that if you travel abroad before they approve your Form I-539, Change of Status (COS) application, USCIS will consider your application to be abandoned. This means they will deny your COS application.

If you filed your Form I-765, Application for Employment Authorization, and travel abroad before your COS is approved, it will be considered abandoned, along with your I-539 application.

This will result in a denial of your Form I-765 even if you are re-admitted as an H-4 nonimmigrant. If re-admitted as an H-4 nonimmigrant, you would need to file a new Form I-765, with fee, in order to apply for employment authorization.

For those who want to file for their H4 or H4 EAD, please call us at 510 742 5887

Thursday, March 17, 2016

240 Days Rule on Pending Extensions and employment authorization extensions.

What if I file for an extension of stay on time but USCIS doesn’t make a decision before my I–94 expires? 

Your lawful nonimmigrant status ends, and you are out of status, when your Form I-94 expires, even if you have timely applied to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your request for extension of nonimmigrant status. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for extension of status pending. Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94.

Although you are out of status, you may be permitted, depending on your classification, to continue your previously authorized employment for a maximum period of 240 days while your extension application is pending if USCIS receives your application before your Form I-94 expires, and you have not violated the terms of your nonimmigrant status. You may be required to stop working immediately when the first of the following events occurs:

 • 240 days elapses from the date your I-94 expires; or
 • USCIS has made a final decision denying your extension application.

 If your application for an extension of stay is approved, the approval will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful. If your application is denied, you may be required to cease employment and depart the United States immediately. In addition, any nonimmigrant visa in your passport granted in connection with your classification becomes void. Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).

Note that the rule applies for extensions of visas such as H1B, L1, O, but not H4 EAD. For the H4 EAD extensions, please file 120 days before expiry and if expired you are technically not allowed to work until the next EAD is approved.

Thursday, March 10, 2016

How to Change Status from B1/B2 to F1 Visa.

Changing status from a visitor visa is possible although sometimes it is better to do a consular processing of the case rather than moving to a student visa or an H4 visa. This video covers the issues related to the change of status to F1 student visa.

Saturday, March 5, 2016

Is it safe to move from H4 to F1?

While there are good news for those who are on H4 and their spouses are on their 6th year extension or have an approved I-140, many others on H4 are still struggling without a work permit (an EAD). As such many have actually opted to go to school where they can ultimately enjoy an OPT (Optical Practical Training) or a CPT (Curricular Practical Training).  The question is whether it is safe to move to F1 student visa from an H4 visa on a change of status or consular processing.  This question can be answered through a case by case analysis. However, few hints and flags can make you determine whether it is good to move to F1:

  • The school reputation - It is very important nowadays to make sure that the school is not blacklisted.
  • Your Goals - Are you planning to take CPT at the outset? This is not a recommended idea. Avoid abusing the CPT.
  • Time to change status - It is taking around 4 months to 5 months for the change of status. Make sure after change of status, if you have already started your school, you will be eligible for the OPT.
  • Ability to get an H4 EAD- If your spouse is close to his approval of I-140 or under AC 21 sixth year extension, we recommend that you do not go for the F1 status.
  • Planning to travel - If you plan to travel after changing status from H4 visa, you will need to get an F1 student visa stamp at the US consulate before coming back. Otherwise, coming back on H4, will require that you file another change of status to F1 visa.
Based on the few points above, it is important that before you move to F1 student visa, you speak to a good lawyer for a consultation. Our law firm has handled many of such cases including H4 to F1 change of status cases, H4 EAD cases, and F1 to H4 change of status cases, feel free to reach out to us at 510 742 5887 for help.

Filing for your H4 Change of Status and H4 EAD.