F2 RFE during H1B to F2 to H1B application


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 applied 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 ?


Did you apply for F2 to H1B change of status and did you get a new i94 once H1B was approved?

Yes, My H1B got approved based on F2 receipt with new I94 which is valid till Jan’2020

USCIS takes weird decisions.

Anyway, you should respond to RFE.
I do not suggest to withdraw the application.

If USCIS denies your F2 application, there are chances that H1B may receive a NOID as the basis of your H1B was F2.