H4 to F1 transfer (application in Mexico)

[kishor_saitwal]

Hi there:

We are Indian citizens currently residing in the USA. I am on H-1B and my wife is on H4. Both our visa status are valid until Sep. 2009. My wife has already started her Masters on her H4 status. Now we are planning to change her visa status to F1 (so that she could work on one GRA position) and we were planning to go to Matamoros, Mexico to apply and get her F1 visa stamped. My question is “If her F1 is denied in Mexico, can she safely come back to the USA on her valid H4 visa?” Logically, her H4 visa should not be canceled until she is granted her F1, but I just wanted to check. Please share your information regarding this.

Thanks in advance.

[mvydyana]

Nooooooooo....

This is a big one. If she is denied the visa in Mexico, the act of applying for a new visa status carries an implicit negation of the previous status. She CANNOT come back into the United States on her H visa, even if it was valid when she left.

This is one of the risks of switching status in a third country - if the visa is denied, the applicant has no way of returning to the US on the old visa, because it will automatically be cancelled. That said, if she has a good record and the like, it may be unlikely to be refused, but it is well to be aware of the risks involved. I was in a similar position to your wife a couple of months go and chose to return to India to get the visa switched.

[kishor_saitwal]

Then how does switching in India differ from switching in third country? If the similar logic is considered and if her F1 is denied in India, she should not be allowed to come back in the USA on her old H4 visa. Kindly let me know if the home country applications are processed differently. If yes, what is that difference and why?

This is a big one. If she is denied the visa in Mexico, the act of applying for a new visa status carries an implicit negation of the previous status. She CANNOT come back into the United States on her H visa, even if it was valid when she left.

[mvydyana]

Well, you're quite right. If denied in India, she would have to stay there. Process is the same everywhere, and unfortunately, this is a risk that occurs every time you want to switch a visa status. No good way to minimize it.

However, the advantage to going back to India is that it becomes a little easier to demonstrate family ties and non-immigrant intent. If you're going to Mexico to switch, one of the questions that can easily come up in the interview is: "how can I trust that you are going to return to your home country after you receive your education via the F-1, if you're unwilling to go back even to switch your visa over?" Demonstration of non-immigrant intent is a big concern when applying for academic visas like the F-1, and can be a basis for denial.

Also, another thing to consider is that the visa switch may take much longer than a couple of days. At least, this is how my University advisor explained it to me. They may take a couple of months to conduct a background check and the like, for any reason at all. Chances are, it will be smooth for your wife and only take a couple of days, but it may well not. And if you're stuck in a third country like Mexico while this is being done... you have the makings of a very stressful situation right there.

Like I said before - switching between visas is not an elegant process, and involves high levels of inconvenience. One of the better options is to go where you already have ties and family while doing it.

Good luck!

[kishor_saitwal]

Hmmm.... Makes sense... Thank you for the information... I seriously need to think on our case now...

Like I said before - switching between visas is not an elegant process, and involves high levels of inconvenience. One of the better options is to go where you already have ties and family while doing it. Good luck!

[mvydyana]

No problem. Consider it advice given from someone who's passed through the equivalent of Dante's Purgatorio over the same question. The number of grey hairs on my head must have tripled.
However, one silver lining is that once you travel and get an appointment at an American Consulate in India, the process is quite quick - at least, it was for me. The interview took a half an hour, and they took all of a week to clear me and give me the new, requested visa. No reason why it might not be the same for you as well...

Cheers, and good luck!

[txh1b]

She CANNOT come back into the United States on her H visa, even if it was valid when she left.

Not at all true. It is plain right wrong! One can enter back on an existing valid visa if the visa was not canceled after getting a denial of F visa.

[txh1b]

My question is “If her F1 is denied in Mexico, can she safely come back to the USA on her valid H4 visa?” Logically, her H4 visa should not be canceled until she is granted her F1, but I just wanted to check. Please share your information regarding this.

She can enter if visa is valid. Depends on the VO. Some VOs cancel the visa when the begin the interview process but most of them are kind enough to do it at the end if they were going to grant you the visa that you are applying for.

[mvydyana]

Well - you may well be right. However, I was told both by my University advisor and an attorney I consulted that the VOs do NOT tend to be nice (at least in Canada and Mexico) and cancel the valid visa until they issue the new one. The way it was put to me was: you have very little chance of coming back on a previously valid visa if denied.

However, I would not want to mislead you on hearsay. Here are two potentially simple solutions:

(1) Consult the International Affairs Advisor/SEVIS Liaison at your wife's school. Every university tends to have one of these to handle international students and visas. He/She has probably seen cases like yours before. Ask them.

(2) Ask the University to recommend an attorney specializing in immigration that you and your wife can consult. Most Universities again, have a relationship with a law firm, and that firm might even do a pro-bono consultation for your case (which is relatively simple) especially if they see a lot of students from your school. This way, you'll also have an "official" answer.

Hope this helps!