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Is H1B visa stamping at foreign consulate required if i transfer from pending AOS(I-130/I-485) ?

Minneapolis, MN |


I came to the US as an F1 students six years ago and always stayed in status before filing for Adjustment of status in 2011. I currently have a pending application (I-130/I-485) based on marriage to a US citizen; However, my wife has decided to file for divorce. I explained the situation to my employer who agreed to file an H1B petition for me since i may soon lose my employment authorization, as long as there is no work stoppage. So this is the question i have:
Given that at this point the only thing keeping me in the US is that AOS application, in case my H1B petition is approved do i have to go back home to get a visa stamping, which would lead to a work stoppage? Or is it possible to keep working with just the approved petition but with no visa stamping?

Thank you,

Attorney Answers 1


Usually, applying for AOS is a gray period area. Not a full fledged status but also no status. You can only fall back on your previous F-1 status if you maintained this status during the duration of your AOS status precisely for situations like you are facing now, i.e. divorce and the yanking of your AOS status. You cannot obtain the H-1B unless your F-1 was maintained but you can certainly apply for the H-1B and most likely be sent overseas for eventual stamping called "consular processing" to clean the slate. Filing for AOS is still considered a period of authorized stay during the pendency but you cannot fall back on the F-1 unless you fully maintained it during the pendency of the AOS. If you cannot fall back onto the F-1 you cannot change status here in the US to another non-immigrant visa category such as the H-1B, but you will be ordered to consular process by USCIS. Short interruption perhaps will not bother the employer too much.

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