Immigration Law Questions? Ask an Immigration Lawyer.
** This message is for JUDITH **
by now you now my situation.
I fully understand about my situation, that I am out of status, but as a Canadian I am visa exempt so I can file for the I-129 for my new H-1B visa and then once I get the new approval notice I go to the U.S./Canada border and re-enter and get the I-94.
But this question is about my wife:
She has a valid B1/B2 visitors visa in her passport and it expires in 2021 (8 years from now).
She also has an H-4 visa in her passport, that expires in May of 2013.
But I understand that since my H-1B from my previous employer ended, her H-4 is out of status also.
But is she still in status because of her B1/B2?
If so, she can change status from this B1/B2 to H-4 while remaining in the U.S. yes?
She could also, change status from B1/B2 to F-1 while remaining in the U.S, yes?
P.S. I read that it is important how we entered the U.S. last time.
The last time I entered the U.S was in January of 2013 and I entered on my H-1B visa.
The last time Luciene (my wife) entered the U.S. was September of 2013 and she entered with her H-4 visa.
Does this make a difference?
Because I read that my previous H-1B status, or Luciene's previous H-4 status would not automatically change to B-2 solely because I am a Canadian and she has a B visa in her passport.
No you are correct that it depends on which visa stamp she used to enter the US. As you said, she entered the US with the H4 visa stamp, she was given an I-94 with H4 status and that is what status she is in and which has become out of status with.
The B1/2 visa stamp is only a way to enter the country. It means nothing when you are in the US, the I-94 is what controls. In her case the H4 is the status.
Don't confuse the visa stamp which is like an admission ticket with status which is what you have once you are in the US. The admission ticket determines the status you are given to hold while in the US.
She can change status while in the US but has to be in status to do so. Otherwise she has to depart and enter the US using her visa stamp. So she could go to Canada with you and surrender her H4 I-94 and come back on the B1/2 visa. But she could only come back as a tourist and not to remain here with you living on the H4. It could possibly be considered misrepresentation and get her a permanent bar from the US. That would be very bad.
Yes, she could if she entered using the B1/2. And again she would have to be careful of a misrepresentation because if she comes saying she is a tourist and then she had already applied to the school and really intended to be a student, somewhere down the line when applying for another visa some day they catch her they could bar her for life.
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