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On OPT Cap gap extension, should my wife apply for F2 or H4 ?

Louisville, KY |

Hello,
My name is Siva. I am currently on my OPT Cap Gap extension until September 30st.
My H1B got approved and it starts from Oct 01 13. My wife is India now. Last month her F2 visa got rejected and the VO asked her to reapply after I get my H1b approval. Can some one suggest me on what visa (F2 or H4) should we apply now. I appreciate if you could also give us the required documents list for this process you suggest.

Thank you once again for the help!
Regards,
Siva.

Attorney Answers 6

Posted

H4. Otherwise she would need to file for a change of status after she gets here.

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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Posted

F2

NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

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Posted

Agree with colleague H4 visa since you have an H1B.

Garmo Law Group, PLLC (Michigan) 248-626-0050. This advice is only general in nature and does not constitute an attorney/client relationship. Speak to an experienced attorney before making decisions.

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8 comments

Alexander Joseph Segal

Alexander Joseph Segal

Posted

How is that that he has an H1B is he is on a Gap Cap extension of the F1? Just friendly curiosity.

Danny Garmo

Danny Garmo

Posted

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.

Danny Garmo

Danny Garmo

Posted

The H1B starts 10/01/2013.

Alexander Joseph Segal

Alexander Joseph Segal

Posted

Thank you. I would guess that already know that. The question than was - if my wife comes now, which visa she needs to apply for? F2 of course, because under those very regulations and applicable memoranda all the student gets is an automatic extension of the F1 status called GAP CAP. So my question to you was, why H4 now if H1 is only going to kick in only in October?

Danny Garmo

Danny Garmo

Posted

Definitely speaking F-2 visa now if they can get one approved. Since it was denied, then shoot for H-4. Second F-2 visa NOW will probably AGAIN get denied/rejeceted. I look at the chances of success and an F-2 now doesn't have a chance. That was my point.

Alexander Joseph Segal

Alexander Joseph Segal

Posted

Now I get it, thanks my friend.

Asker

Posted

i still am in a dilemma. Her F2 was rejected in march 2013 and VO told her she could go after i get my H1B. My H1B got approved recently in april 2013 and i want to bring my wife to US asap like in may 2013. pls suggest which visa should i apply because though my H1B got approved, it will start from oct 2013. if she should come on F2 then what are the chances of approval.

Danny Garmo

Danny Garmo

Posted

I would suggest talking to a experienced immigration lawyer in your area to weigh all options.

Posted

She should wait a little and apply for H4. Otherwise she needs to apply for F2 and change status to H4.

Att. number 917-885-2261 This advice does not create an attorney client relationship. No specific legal advice may be offered by the lawyer until a conflicts check is undertaken. Information sent through a web form or via email may not be treated as confidential. Please accept my apologies for spelling mistakes. Law Office of Alena Shautsova , New York Immigration Attorney http://www.shautsova.com Blog: http://www.russianspeakinglawyerny.com

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Asker

Posted

Her F2 was rejected in march 2013 and VO told her she could go after i get my H1B. My H1B got approved recently in april 2013 and i want to bring my wife to US asap like in may 2013. pls suggest which visa should i apply because though my H1B got approved, it will start from oct 2013. if she should come on F2 then what are the chances of approval.

Posted

Your wife should follow the consulate's advice and apply for the H-4 visa as your dependent once you yourself are in H-1B status come October, and have proof of having already been paid by the employer (at least 3 pay stubs.)

Wife should take all the necessary documents to prove that you are genuinely employed in H-1B status by a legitimate employer and not a bogus "contractor" or "outsourcer" , since that is what US consulates in India are afraid of the most.

Make sure wife takes with her copy of entire H-1B petition submitted to USCIS, including the copy of the certified LCA, etc., as well as a copy of the employment contract (I would be careful with that one, though, and only produce if asked and if not harmful..)

It will also be a good idea to produce proof of the bona fixes of the marriage, especially if a recent one and no kids yet.. Of course, it would be best if you could accompany your wife to the visa interview..

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.

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Posted

I agree with my colleagues.

Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.MyImmigrationLawyer.info NOTE: Responses are for the education of the community at large and is not intended to be "legal advice." No attorney-client relationship is established by responses or comments.

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Asker

Posted

Her F2 was rejected in march 2013 and VO told her she could go after i get my H1B. My H1B got approved recently in april 2013 and i want to bring my wife to US asap like in may 2013. pls suggest which visa should i apply because though my H1B got approved, it will start from oct 2013. if she should come on F2 then what are the chances of approval.

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