Urgent - Emergency application for applying F1 visa

[technocoolie]

Hello,

My wife and myself are now in India for vacation. I just came to know yesterday that my I-485 and I-140 got rejected. My wife was planning to use Advance Parole to come to US, but as I-485 and I-140 has been cancelled, she cannot use it anymore.

Initially my wife had H4 visa in US, and then later on, in Sep-07 she got her H4 converted to F1 visa in US itself. Now according to my understanding, my wife has to go for F1 visa stamping in India. She has completed 1 year in university, so I hope there should be much problem in getting F1 visa stamping.

Please advice the following.
1. Is she taking proper step by going for F-1 visa stamping as she is already in India.
2. Can she apply for emergency visa date as the next semester is starting within 2 months.
3. Will she face any problem while getting F-1 visa in India considering the fact that I-140 and I-485 got rejected?
4. Will she face any problem with Immigration while entering US with F1 visa considering the fact that I-140 and I-485 got rejected?

Appreciate your quick response
Thanks in advance

[txh1b]

As she has an immigrant petition filed in the past (485), she would need to declare it and explain that it has been rejected.
F1 visa aspirants should not have any immigrant intent which is little bit of a concern.

1. She could try. If it gets denied, she can appear for a H4.
2. She could.
3. Not for that getting rejected but because of what I mentioned above.
4. See above.

What is the reason for I140 and I485 denial? When was it applied?

[technocoolie]

txh1b,
I had applied using pre-approved labor and the reason stated by USCIS for the rejection is that the pre-approved labor does not match my description. I-140 was applied in July-2007 and I-485 was applied in Aug-2007.

1. How to tackle the question of applying for GC though she was on F-1? As you stated, this might be a problem. What are better ways to handle such question?
2. Is it better to go for H4 directly rather than go for F1.

Appreciate your quick response
Thanks in advance

[txh1b]

Does she have an assitantship or TA/RA at school? If so, F1 is worth a try. If not, you can always fall back on H4 and have nothing to be worried about.

[technocoolie]

She doesn't have any TA/RA, so F1 is not a must for her. F1 or H4 both are same for her from that view point. Please suggest me which one will be better to go for?

Thanks again

[txh1b]

Depends. She will get OPT only if she has been on F1 for 9 months. That will allow her to work without SSN and medicare taxes!

If all that does not matter, go for H4, safe bet!

[technocoolie]

I was initially thinking that since my wife had converted her visa from H4 to F1 in US, it is must for her to have F1 stamping here in India. But as I see according to you, my wife can also apply for H4.

Now, my wife's old H4 is valid till Sept 2008. In that case, can she use the old H4 to enter US or she has to apply for a new H4.

If she has to apply for new H4, then please confirm me again that H4 is more safer to get rather than F1. I assume that being on H4 and applying for GC is not a problem, but being on F1 and applying for GC is a problem.

Appreciate your response
thanks in advance

[txh1b]

She can enter on H4 with the existing unexpired H4 visa and need not go for visa stamping.

[technocoolie]

Thanks a ton for your clarification. If she can still use the unexpired H4 visa then we will not have to go through the hassle of F1/H4 visa stamping process.

Just summarizing my wife's background
My wife entered US in Aug-06 with H4 which is valid till Sept-08.
She converted from H4 to F1 in Sept-07 in US itself. So there is no stamping of F1 on her passport.
I-140 and I-485 applied in July-07 and Aug-07 respectively and got rejected in June-08.
She has used Advance Parole once while reentering US in Apr-08. At that time I-140 and I-485 was under pending status.

1. Considering all the above things, I hope she can still use the unexpired H4 visa.

2. Also, do let me know if she will face any issue with immigration while entering US with H4 visa, considering the fact that I-140 and I-485 is rejected.

Appreciate your response
Thanks in advance

[txh1b]

1. Yes, assuming you have not currently using EAD or AP in the US. Also, she stopped being on F1 the time she used her AP on her previous entry in April 2008. She was a parolee.
2. No problems. She can use H4 if you are currently on H1. Just carry proof for the same and if asked at POE about the AP entry, you can mention about the I140 denial and you maintaining a non-immigrant status now.

Now that you mention the AP entry, was your wife in US after the I140 and 485 denial? If so, she has accumulated unauthorized stay. It is never safe to use AP/EAD until the I140 gets approved.

[technocoolie]

My wife was not in US when I-140 and I-485 got rejected. She was in India when we received email stating that both got rejected. In that case, I hope she has not accumulated unauthorized stay.

Thanks a lot for clarifying

[txh1b]

You are fine! Enjoy the visit and you can enter with your wife without any problems at POE.