F1 denied due to visiting husband on B1/B2

[legal_consult 0]

I'm a non-immigrant working on F1 STEM-OPT in US. I got married in March 2019 in India and my wife visited me for 2.5 months in US on B1/B2 visa. She had received the tourist visa in 2017 to come visit me for couple of weeks. She stayed with me in US from March 25  to June 11. We had been in the process of applying to graduate schools in US for my wife since last year for Fall 2019 term. She received an admit from a university and appeared for a visa interview in New Delhi consulate. The VO denied the F1 visa saying your circumstances had changed since you were issued B1/B2; you should not have visited your husband on the same visa. She said you should apply for F2 (student dependent) and study there. She gave her the 214B slip. Additionally, she cancelled her B1/B2 with a stamp saying "cancelled without prejudice". She wants to appear for another visa interview for F1. Is it a good idea to re-appear for the interview? We are thinking of explaining that she came to US for short term and attend few information sessions of some universities. Therefore, she did not apply for a F2 dependent visa. Moreover, the reason we did not apply for F2 dependent visa was because we were already planning on applying for F1 visa.

[Duke & Marie 1,389]

12 minutes ago, legal_consult said:

I'm a non-immigrant working on F1 STEM-OPT in US. I got married in March 2019 in India and my wife visited me for 2.5 months in US on B1/B2 visa. She had received the tourist visa in 2017 to come visit me for couple of weeks. She stayed with me in US from March 25  to June 11. We had been in the process of applying to graduate schools in US for my wife since last year for Fall 2019 term. She received an admit from a university and appeared for a visa interview in New Delhi consulate. The VO denied the F1 visa saying your circumstances had changed since you were issued B1/B2; you should not have visited your husband on the same visa. She said you should apply for F2 (student dependent) and study there. She gave her the 214B slip. Additionally, she cancelled her B1/B2 with a stamp saying "cancelled without prejudice". She wants to appear for another visa interview for F1. Is it a good idea to re-appear for the interview? We are thinking of explaining that she came to US for short term and attend few information sessions of some universities. Therefore, she did not apply for a F2 dependent visa. Moreover, the reason we did not apply for F2 dependent visa was because we were already planning on applying for F1 visa.

Would appear to be a simple change of name issue possibly... if she changed her name post wedding she should travel on married name visa etc... same same for student visa application... I had to renew my visas under married name prior to travel to visit my hubby etc

[SusieQQQ 11,584]

29 minutes ago, legal_consult said:

I'm a non-immigrant working on F1 STEM-OPT in US. I got married in March 2019 in India and my wife visited me for 2.5 months in US on B1/B2 visa. She had received the tourist visa in 2017 to come visit me for couple of weeks. She stayed with me in US from March 25  to June 11. We had been in the process of applying to graduate schools in US for my wife since last year for Fall 2019 term. She received an admit from a university and appeared for a visa interview in New Delhi consulate. The VO denied the F1 visa saying your circumstances had changed since you were issued B1/B2; you should not have visited your husband on the same visa. She said you should apply for F2 (student dependent) and study there. She gave her the 214B slip. Additionally, she cancelled her B1/B2 with a stamp saying "cancelled without prejudice". She wants to appear for another visa interview for F1. Is it a good idea to re-appear for the interview? We are thinking of explaining that she came to US for short term and attend few information sessions of some universities. Therefore, she did not apply for a F2 dependent visa. Moreover, the reason we did not apply for F2 dependent visa was because we were already planning on applying for F1 visa.

I’m presuming from what you said above that the CO thought she was staying with you too long to be a “visitor”, especially leaving in June and planning to come back in fall. So it seems the CO thought she was living with you in the US for that period and should have been on F2 - yes, even if she planned to apply for F1 in due course.  All that said, that in itself doesn’t explain in my mind why the F1 was denied. 214b means denial due to immigrant intent, so clearly she was unable to convince the CO of her intention to return to India. (Kind If makes sense with her husband in the US...) So the question about reapplying will be: what has changed in her application to overcome the presumption of immigrant intent?

[Coco8 1,039]

It is weird she would be asked to do an F2 since she is going to study. I would suggested that she contacts the university she plans to attend and ask the visa advisors for suggestions. 

 

Also, under an F2 she cannot pursue graduate school. I think the consulate doesn't think she is going to actually pursue graduate school and thinks this is a way for her to move in with you. She wasn't denied because of the B1/B2, by the way. 

Edited July 13, 2019 by Coco8

[legal_consult 0]

16 hours ago, SusieQQQ said:

I’m presuming from what you said above that the CO thought she was staying with you too long to be a “visitor”, especially leaving in June and planning to come back in fall. So it seems the CO thought she was living with you in the US for that period and should have been on F2 - yes, even if she planned to apply for F1 in due course.  All that said, that in itself doesn’t explain in my mind why the F1 was denied. 214b means denial due to immigrant intent, so clearly she was unable to convince the CO of her intention to return to India. (Kind If makes sense with her husband in the US...) So the question about reapplying will be: what has changed in her application to overcome the presumption of immigrant intent?

SusieQQQ, you are probably right. She may not have convinced the officer that she indeed wants to study in US and then return to India. As to answer the question about what has changed in her application since her first attempt - nothing actually. Since she was caught by surprise during her first interview, she may not have reasoned her intentions to the officer clearly. We are hoping to give another shot and correct that. Also, doesn't it make our argument stronger that she came to US to visit her husband and left without overstaying her visa. She has done that twice already (although the first she visited we weren't married then). Doesn't this demonstrate non-immigrant intentions? She has received some scholarship from her University too which kind of makes her a "genuine student" (whatever that means). If we give it another try, won't it appear that she is really desperate to go for grad school? Do you think that all these reasons make our case strong and may influence the officer reverse their decision?

 

On the other hand, I am skeptical to schedule another F1 visa appointment because if F1 doesn't pan out, I do not want to hamper her chances of getting an H4 dependent visa. My H1B petition is in progress and should be effective October 1. I'm scared that if we try too hard for F1 now and don't get it, it may hurt her chances of getting an H4 later this year.

 

 

1 hour ago, Coco8 said:

It is weird she would be asked to do an F2 since she is going to study. I would suggested that she contacts the university she plans to attend and ask the visa advisors for suggestions. 

 

Also, under an F2 she cannot pursue graduate school. I think the consulate doesn't think she is going to actually pursue graduate school and thinks this is a way for her to move in with you. She wasn't denied because of the B1/B2, by the way. 

Coco8, I don't think that you cannot pursue graduate school on F2. However, you are probably right to say that the consulate thinks that she wants to move in with me.

[SusieQQQ 11,584]

F1 requires you show you will return to your home country at the end of it. H4 on the other hand doesn’t as H1B and by definition derivatives are dual intent, so no I don’t think another F refusal would be a problem for H4 down the line. Of course, you have just proved the CO’s point as clearly there is an intention to stay in the US rather than return at the end of the F1 visas...the consulate is probably well aware that your H petition is in progress.

Edited July 14, 2019 by SusieQQQ