F1 to H4 (Visa stamping vs COS)

[unknownuser1 0]

Hello,
I am from India, currently on H1B visa in the US (I-140 filed and approved). My fiancee is from Poland. She came to the US in 2014 on J1 Visa and in 2016 we changed her status to F1. We moved in together in 2016 (in a relationship from 2015) and have been living together from then. Now we are ready to take the next big step and get married. We are planning to do a simple court marriage in November with just two us and 2-3 close friends.

With the research I did online I was able to find out that there are two ways to get her H4.
1. Visa stamping in Poland (preferred by us personally): After marriage during Christmas we go to Poland which will allow us to spend some time with her family and take an H4 Visa appointment there.
2. I-539 Change of Status (convenient): After the marriage, we can file for the change of status from F1 to H4 just like we did from F1 to J1 earlier with the required paperwork.

We have the following questions:
1. Is option 1 feasible or am I missing some legal details?
2. Which one is the more preferred way to do this or is it a personal preference. One of my concern is that if we do visa stamping in Poland and for some reason, it gets denied then she will have no way to come back to the US since she doesn't have F1 visa stamp on her passport. With the change of status, we have a safety net of remaining in the US on F1 till our green card gets done.
3. For H4 do we need to show proof of relationship which leads to marriage or just proof of marriage? If we need proof of relationship, our relationship existed way before we filed for J1 to F1. Should we show proof of that in our application since the F1 visa is non-immigrant and a relationship might be seen as an intent?

Please advice.

Thanks.

[Coco8 1,042]

Option 1- It can take a while to do the H4. I am guessing you want that to be a short holiday but (1) some countries do not give you an official marriage certificate immediately (2) consulates are closed some days during the holidays so there are not many interview dates available and they are not working on visas (people take days off to see their families). It seems risky to assume she will get the visa super quick.

 

Option 2- Maybe. But change of status within the US takes a long time.

 

What I don't understand is why you want to change her from F1 to H4. H4 is not a good status. F1 allows her to work part-time at the university while being a full-time student. Plus, she has OPT when she graduates and can work full-time and gain experience. 

 

H4 does not allow her to work at all! She cannot work on campus (e.g. imagine is a professor wants to hire her as research assistant for the summer or she wants to gain some experience on campus). H4 is a very limiting status and it is a pretty dumb idea. 

 

If she had a J1 before the F1, you need to make sure the J1 didn't have the 2 year residency requirement. This is a general thing you need to know in case your job applies for a green card for you and you'd like to add her to the petition once you marry.

[unknownuser1 0]

On 10/29/2017 at 12:09 PM, Coco8 said:

Option 1- It can take a while to do the H4. I am guessing you want that to be a short holiday but (1) some countries do not give you an official marriage certificate immediately (2) consulates are closed some days during the holidays so there are not many interview dates available and they are not working on visas (people take days off to see their families). It seems risky to assume she will get the visa super quick.

 

Option 2- Maybe. But change of status within the US takes a long time.

 

What I don't understand is why you want to change her from F1 to H4. H4 is not a good status. F1 allows her to work part-time at the university while being a full-time student. Plus, she has OPT when she graduates and can work full-time and gain experience. 

 

H4 does not allow her to work at all! She cannot work on campus (e.g. imagine is a professor wants to hire her as research assistant for the summer or she wants to gain some experience on campus). H4 is a very limiting status and it is a pretty dumb idea. 

 

If she had a J1 before the F1, you need to make sure the J1 didn't have the 2 year residency requirement. This is a general thing you need to know in case your job applies for a green card for you and you'd like to add her to the petition once you marry.

Hello @Coco8,

Thanks for your reply. 

We are changing from F1 to H4 because if the following reason:

- It will allow us not to pay international student fee.

- My I-140 is approved so when we will file for H4 we will also apply for H4 EAD which will allow her to take any legal work anywhere.

- We want to switch her studies to a different program which will be an extension of her current master's degree. This will be hard to do on F1 since her F1 is tied to a school and program.

 

She is not subject to two-year residency rule. She was on J1 for two years and we were able to change to F1 without any issues and at that time we checked her visa for this.

 

I am from India and she is from Poland so after our marriage, we plan to cross-chargeability on basis of her country being "current" on my green card application (I-140 approved; I-485 pending on priority date) by adding her as my dependent. If things work out well I am hoping we will have green cards in 6-12 months so keeping the OPT option is not a priority for us (In case if H4-EAD gets pulled back).

 

Hope this gives you more context about our situation. 

 

Option 1: If we get married in US and get the marriage certificate from here wouldn't that be sufficient to attend the visa interview in Poland just to get the visa stamp?

 

Thanks. 

Edited October 30, 2017 by unknownuser1

[Boiler 45,525]

Is being land locked an issue?

 

Did not think you can cross charge but never came across somebody suggesting it was possible before.

[Coco8 1,042]

 

2 hours ago, Boiler said:

Is being land locked an issue?

 

Did not think you can cross charge but never came across somebody suggesting it was possible before.

Yes, I hadn't heard about it before either. But it seems it is possible and it would work out better for both of you.

 

3 hours ago, unknownuser1 said:

- It will allow us not to pay international student fee.

My understanding is that you stop paying the international student fee once you are a resident of the state. So both of you should have lived in the state for a year. You as an H1B should have paid taxes in the state and show proof of residence. I think there is also the requirement of having been married for a year.  You should look into you partner's school and find out. My university had this last rule.

 

3 hours ago, unknownuser1 said:

 If we get married in US and get the marriage certificate from here wouldn't that be sufficient to attend the visa interview in Poland just to get the visa stamp?

Yes, that sounds better. The day she arrives she can pay the fee, submit the visa petition (she might want to fill in the application online and have it ready; I think you cannot submit it while abroad because it asks for your i94), and get an interview.

 

She might want to take proof that she will remain a full-time student. 

 

 

 

Edited October 30, 2017 by Coco8

[Boiler 45,525]

Permissible actives on a H4? Would need to check.

[Coco8 1,042]

45 minutes ago, Boiler said:

Permissible actives on a H4? Would need to check.

What do you mean? His I-140 was approved so the H4 dependent is allowed to work.