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I submitted status change from F1-OPT to H4 during the grace period, can I stay in the US even my F1OPT grace period is out?

Chicago, IL |

1) During my F1-OPT grace period (23July2013---22Sep2013), I submitted my status change to H4 on 13Sep2013 since my spouse's H1B will be effective on 01Oct2013. I want to confirm that after I submitted my change status to H4, even my F1-OPT grace period is out, I can still stay in the US until I received information for my change of status to H4, am I right? 2) before I am approved to H4 visa, can I submit 485 with my spouse if spouse's 140 approved (EB1A)? Without the approve for H4, my F1-OPT expired since I submit the application during the grace period. Does that mean I do not have a valid visa, I can not submit status adjustment before H4 approved?

Attorney Answers 5

  1. TRICKY QUESTION. Filing a COS before your grace period expired would have been fine ... if he was in H at the time you filed. The fact that his H won't 'kick-in' until October 1st puts you into a 'gray area'.

    Why? Because, if immigration had the ability to immediately approve the papers ... they couldn't have been approved ... due to the fact that your husband's H isn't valid yet.

    1. Meet with an attorney ... your COS may be at risk.
    2. Meet with an attorney ... an AOS for you may also be riskly.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- -- -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

  2. Mr. Capriotti makes a good point. There is an issue as to whether the STEM extension is in place for an H4 dependent. Assuming so, you have yet to be approved for the COS , which is of concern. It may be frustrating to wait, so you should discuss the consequences of your hasty proposition with a candid and competent immigration attorney. Good luck.

    This is general information, not legal advice, and does not create an attorney client relationship.

  3. The Professore conducts excellent analysis. Ah, the truth hurts sometimes, doesn't it?

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

  4. As explained by my esteemed colleagues, your issues are complex and potentially tricky. Do yourself a favor and hire an experienced immigration attorney - you live in Chicago, so there are very many and very excellent ones available to assist you with this. Relying on an on-line format for such sensitive advice is not your best option here. Good luck!

    This advice does not form an attorney-client relationship and is merely informative. It should not by itself be relied upon to address a legal concern.

  5. Generally, a person is allowed to stay in the U.S. during the pendency of their timely filed application for change of status, or extension of status.

    The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.

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