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Was in F-1, Applied to H4 but Denied, and Now I'm Out of Status - What to Do

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  • 04-03-2010, 05:29 PM
    bswr
    Was in F-1, Applied to H4 but Denied, and Now I'm Out of Status - What to Do
    HI
    My wife and two daughters came to the USA on F-2 Visa as my dependents. Subsequently she obtained F-1 visa for a graduate program. In 2009 Fall, She was informed from her school that they are going to start an advanced program than what she does now. Further, she was informed that most of her credits could be transferred towards the new advanced grad program which she really wanted to do. However, if she continued with the current program for next semester (Spring 2010), she would have completed her degree and have to graduate thus cannot transfer her credits towards the proposed advanced program. Therefore she wanted to somehow skip the spring semester as she plans to pursue the new program in fall 2010.
    So the International student office's (ISO) advise was
    1. Either to go back to home country during spring 2010.
    or
    2. Change the status to H4(I m a H1B holder until 09-2012).

    Therefore, we applied for H4 (wife and two daughters) in December 2009 and wife did not register for any classes for spring 2010.

    I received the denial notice yesterday for I539 and she is required to depart the USA on the basis that she did not maintain her F1 status. She was not advised by the ISO to register for classes. However, now the damage has been done.

    I would really appreciate if somebody would help me on following questions;

    1.Is there any appeal process (it is not mentioned in the denial notice) solution without going back to country.

    2. If the only solution is to go back to home country, is there any grace period? (Is it starting from the denial notice date?)

    3. Will this affect (will get denied) to a new F-1 visa for the new program from the home country due to this out of status issue?
  • 04-03-2010, 06:16 PM
    T53147
    Re: Was in F-1;applied to H4 but Denied; Now Out of Status; What to Do
    There is no appeal for hardship. Verify from the timeline that she was in F-1 status on the recognized filing date. If she was, consult with an attorney.

    The sooner she attends to it the better. ICE/DHS could be alerted by the university. It is easiest to just get stamping and reenter. If she has H-4 stamping, she just needs to exit and reenter to regain that status; if not, she must appear for H-4 stamping.

    It may, but issues with finances and non-immigrant intent proof as required for F-1 visa are more likely to be a problem for F-1 stamping. Remember there are rules for entry on F-1 before beginning of the program.
  • 04-05-2010, 01:13 AM
    bswr
    Re: Was in F-1, Applied to H4 but Denied, and Now I'm Out of Status - What to Do
    Thank you so much for info!
    Her H4 was neither granted nor stamped. It was rejected because she did not maintain the F-1 status according to the letter. However, she was in F1 status when the new I539 was applied. If there is no appeal process what kind of relief that I could expect?

    Ben
  • 04-05-2010, 12:32 PM
    T53147
    Re: Was in F-1, Applied to H4 but Denied, and Now I'm Out of Status - What to Do
    The easiest thing is for her to should return to your home country and appear for stamping as one normally would for an H-4 visa. It sounds like only a change of Status was denied; this is not unusual for someone who did not maintain their status. It is likely a timing issue where your definition of in status does not match that in other records. Don't fight the process; just take the easy way out and get the stamping.

    What is the status of the children? If they did not receive COS to H-4, they have the same issue.
  • 04-06-2010, 11:11 PM
    bswr
    Re: Was in F-1, Applied to H4 but Denied, and Now I'm Out of Status - What to Do
    Thank you so much. Really appreciate your advise!
    As you correctly guessed, my children have the same issue. FYI, She has applied for the H4 on 21st December. That is during the winter break.

    As you said, we are planing to go back to home country and face for visa interview. She has two options. F1 and H4. We also prefer H4.

    Will this denial issue affect her H4 visa stamping process? Do they have access to these records? Can we apply for the same visa which was denied from USCIS?

    Please help me understand my main concern about this problem!

    Thanks again

    Ben
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