F2 RFE after H1B->F2->H1B approval


#1

Hi,

My H1B max-out in July’2018 and I moved to F2 because my PERM was not approved when my H1B got maxed-out. Now, In Oct-2018 my I-140 got approved and I appllied for my H1B extension in regular processing in Dec’2018 because premium processing was suspended till 18thFeb’2019. Now, in March’2019, my H1B extension got approved for one year and I started working again. During July’2018 to Feb’2019, I was on F2 receipt and it remained pending even after my H1B got approved. I didn’t withdraw my F2 application because i was under the fear that my stay will be consider illegal if I withdraw it.

Now, suddenly I have received an RFE for my H1B->F2 application(which I applied in July’2018) even through my F2->H1B(which I applied in Dec’2018 based on F2 receipt) application is approved.

RFE is for following.
A. Maintenance of F1 Status
Prove my spouse -F1 holder was maintaining F1 status when I filed for F2 application by providing any of the following documents

  1. Provide all I-20
  2. Letter from school that F1 holder is attending classes
  3. F1 holder’s OPT EAD
  4. If on CPT/OPT, provide three most recent pay stubs

B. Residence abroad
Provide evidence to establish that you currently have a foreign residence.
Please note that I don’t have any residence in my home country on my name.

Now, I have following query,

  1. My F2 to H1B was approved based on F2 receipt number then why USCIS is asking for evidence for my old H1B->F2 application ?
  2. Can I withdraw H1B->F2 application after receiving RFE ?
  3. If I withdraw my application then will my stay(July’2018 to Feb’2019) consider illegal ?
  4. What will happen if I reply to RFE ?
  5. Does it matter now, if USCIS denies or approves my H1B->F2 application ?

Thanks,
VM


#2

Very tricky, take steps VERY carefully as the RFE is clearly digging the wrong holes in your transition. A legal help is very much suggested.
I will try to provide my opinion below, just to give more insight but make final decision as per the legal advise.

  1. My F2 to H1B was approved based on F2 receipt number then why USCIS is asking for evidence for my old H1B->F2 application ?
    The new H1 B approval is independent of your previous H-F COS. So, the old flow is still running and thus the RFE.
  2. Can I withdraw H1B->F2 application after receiving RFE ?
    I dont suggest the withdrawal of it. As you are saying, it would cause an out of status period between your old and new H1. You MUST get this F fully approved.
  3. If I withdraw my application then will my stay(July’2018 to Feb’2019) consider illegal ?
    Yes, you cant show on which status you are during that time as PENDING status of a petition doesnt give you a concrete status for that PENDING time.
  4. What will happen if I reply to RFE ?
    You must reply the RFE and get it approved.
  5. Does it matter now, if USCIS denies or approves my H1B->F2 application ?
    Yes it does matters.
    A) if denied, you may acquire out of status from the date of denial, But it would not be true as you already had H1 status as of now. Thus, its safe for you to get it denied.
    B)It its approved, you may run back into the F status and you need to file an F-H cos immediately.
    Thus, you must reply the RFE and hope for a final denial.
    I would strongly suggest to properly reply the RFE with the TRUTH.

RFE reply:
A) Provide your spouse F details, easy right?
B) You can provide your last known address from where you have come to US. Also check if there is an address on your passport for your overseas reference, you may provide that.
A cover letter mentioning that the last known oveseas address since you start living in US was that and there is no other living term in overseas.
Here you can easily mitigate everything as you dont have to lie anywhere. All you need to do is to take time, think nicely, prepare what to do step by step, do it nicely and properly point-to-point.
Again, have a lawyer consultation after doing the above for a legal verification/suggestion before filing the reply for RFE. Good luck.


#3

Thanks for a detailed reply. I really appreciate it.

I have few more queries regarding this.

  1. While replying to F2 RFE, can I request USCIS to approve my F2 only until H1B extension start date ?
  2. I have bought a house in US Just a one week before the issue of this RFE and while changing the address online, i received this query ? Is this co-incident OR does it matter for USCIS ? Because they are currently processing 29th Nov’2018 F2(I-539)applications and why they suddenly started looking at the application from July’2018. The processing time for July’2018 application is already passed now. Can you please give some insight ? I am little worried now.

#4

No, such visa validate date requests are not honored. Its upto USCIS to decide on from when to when.

Technically your house buying, change in residential address should not impact an ongoing immigration process. But tactically, the officer may see the series of recent activities around(your work location change, residence location change, your visa time expiration, your spousal immigration changes etc… ) and trigger a derived activity.


#5

'Can they give me “Notice to Appear” or any other notice which can affect my H1B ? Please let me know. I am little worried now.


#6

I didnt get what you are trying to ask.


#7

I mean what worst can happen to me in following case ?
If USCIS denies OR i withdraw my F2 application ?
Can this affect my future H1B applications ?