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  1. #1

    Default Applying for F-1 While I-130 Pending

    Hey Everyone,

    My brother is a US citizen who has filed an I-130 for me and my family in May, 2008. We've traveled to the US on B1/B2 visas in February, 2009. The thing about it is that in the DS-156 form point "36. Has Anyone Ever Filed an Immigrant Visa Petition on Your Behalf?" we've answered "No". I've had no idea at that time that it was referring to the petition for alien relative. Anyways, we've returned back home in time. Also, I've had 3 visas before (2 tourist and 1 student) and never violated any immigration laws.

    Then in December, 2009 we've applied for F-1 visa and got denied. This time it was a DS-160 form that we filled out which replaced the old DS-156 form. It didn't have that question about the petition anymore. I think they've decided to exclude it because a lot of people were confused by it. Anyways, the consulate officer didn't like the fact that I haven't transferred my credits from 2 courses of University that I've completed in my home country. Plus my major differed from my previous education course.

    So my question is. Is it ok to apply for F-1 visa while I-130 is pending? I mean we've been issued B1/B2 visas before. Even though we've answered "No" to that question, they saw that I had a brother in the US who is a US citizen. I'm thinking of transferring my credits and using same major course this time or at least similar. This way in the eyes of the consulate officer it will look as I am going to the US to finish my education. The thing is, I am planning to attend community college first in order to finish general courses and then transfer to the university. My major in my home university was physics and this community college doesn't have it. I may go with "general education" course at the community college and explain to the consulate officer my situation.

    Is it even legal to apply for F-1 visa while I-130 is pending? I believe so. My another question is. Once I finish education. What's the next step would be? Will it be easy to transfer from F-1 to H1B visa while I-130 is pending? What about my wife and a baby who will be on F-2 status? Please share your thoughts. Thank you!

  2. #2
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    Default Re: Applying for F-1 While I-130 Pending

    It's problematic, to say the least, that you lied to get your F1 visa. That could cause problems with future entries or could later be deemed evidenced of abandonment of the I-130. You're supposed to tell the truth when you apply for a visa; if you are determined to have committed fraud you can be permanently excluded from the United States.

    A F-1 visa, similarly, is a non-immigrant visa. Declaring that you have no intent to immigrate is inconsistent with the prior filing of the I-130. If you truly have no intent to immigrate, ask your brother to withdraw the I-130. It seems pretty weak for you to try to go from "physics major" to "community college student with no major" - it makes it appear that your goal is to get into the U.S. for reasons other than to advance your studies.

    Getting an H1B after completing your studies, assuming you qualify, is pretty routine. Family members can seek H4 visas.

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