Change of Status

[nhd 0]

I am on H4 visa in USA from last 9 years, getting a divorce after 12 years of marriage. My parents are US citizen and they filed for me in F3 category. On my I-797 My priority date is Dec 2010. So my question is that after my divorce is it possible i can stay in USA with my parents and my son(US citizen) with change of status? F3 (Married sons and daughters of U.S. citizens) to F1 (Unmarried sons and daughters of U.S. citizens). How long it will take? Thank you

[JFH 12,189]

*~*~*moved from “off topic” to “bringing family members of USCs” and one duplicate thread removed - please do not post the same question more than once - thank you*~*~*

 

What country are you from? Mexico and Philippines have longer waits so if you are from either of those you have many more years to wait. If you are an H4 dependent of an H-1B then your status will expire once the divorce is finalized and you will have to leave the country. You cannot stay if your priority date is not current. If your son was born in the USA, he is a USC and can stay. 

[nhd 0]

18 minutes ago, JFH said:

 

 

I am Indian citizen. Thank you.

 

[JFH 12,189]

2 hours ago, nhd said:

 

The PD is current so you can adjust status.

Edited October 12, 2018 by JFH

[SusieQQQ 11,584]

You’d probably need to get an attorney to handle changing the classification. You may (I’m not sure) need to return to India between when your H4 status expires and when you get proof of approval of conversion to F1 - the attorney would advise on that. But if you do then you would do consulr processing in India, not AOS.

Edited October 12, 2018 by SusieQQQ

[SusieQQQ 11,584]

9 minutes ago, JFH said:

You have a few years to wait so you will need to return home. 

Not if she changes to F1, then the PD is current. So it becomes about changing the classification rather than waiting for a PD.

[JFH 12,189]

20 minutes ago, SusieQQQ said:

Not if she changes to F1, then the PD is current. So it becomes about changing the classification rather than waiting for a PD.

Must get new glasses. I read the PD as 2016 not 2010. Will edit my post.

[JFH 12,189]

26 minutes ago, SusieQQQ said:

You’d probably need to get an attorney to handle changing the classification. You may (I’m not sure) need to return to India between when your H4 status expires and when you get proof of approval of conversion to F1 - the attorney would advise on that. But if you do then you would do consulr processing in India, not AOS.

Wouldn’t it just be a petition upgrade like an F2A that becomes a CR-1 if the petitioner becomes a  USC after filing? There is no visa yet, they are only at petition stage. 

[SusieQQQ 11,584]

12 minutes ago, JFH said:

Wouldn’t it just be a petition upgrade like an F2A that becomes a CR-1 if the petitioner becomes a  USC after filing? There is no visa yet, they are only at petition stage. 

I don’t know exactly how it works - but if she needs to get divorced before she can upgrade the petition, then isn’t she automatically is out of status before she (or her parents technically) can apply for the upgrade? So she’d need to leave? She can’t just stay because she won’t be able to adjust status if she’s been out of status/has no valid status to adjust from, and there is no forgiveness for overstay for any of the “F” categories. I don’t see how she can adjust actually, wouldn’t she have to do CP?  She won’t be able to file for AOS before the event that puts her out of status.

Edited October 12, 2018 by SusieQQQ

[JFH 12,189]

6 minutes ago, SusieQQQ said:

I don’t know exactly how it works - but if she needs to get divorced before she can upgrade the petition, then isn’t she automatically is out of status before she (or her parents technically) can apply for the upgrade? So she’d need to leave? She can’t just stay because she won’t be able to adjust status if she’s been out of status/has no valid status to assist from, and there is no forgiveness for overstay for any of the “F” categories. I don’t see how she can adjust actually, wouldn’t she have to do CP?  She won’t be able to file for AOS before the event that puts her out of status.

Depends if there is a grace period that allows newly-divorced H4s to remain in country for a given period of time after the divorce. 

[SusieQQQ 11,584]

8 minutes ago, JFH said:

Depends if there is a grace period that allows newly-divorced H4s to remain in country for a given period of time after the divorce. 

I’m always slightly sceptical of Avvo, but on this question asked by someone else a couple of years ago the lawyers all agree there is no grace period after a divorce for H4. I do think best advice for OP is to engage an attorney of her own in case there is a workaround. 

 

Edited October 12, 2018 by SusieQQQ

[nhd 0]

Thank you