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US citizen getting married to a H1B visa holder

Discussion in 'How to start the green card process' started by kbg, May 20, 2011.

  1. kbg

    kbg Junior Member

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    Hello,
    I am US citizen and I have plans to get married to a H1B visa holder. Both of us are in Michigan. I would like to know what all I need to file to get her a green card eventually. Can we travel to India to get married while the applications are still pending?

    Where should I start? What are the applications that I need to file? There are forums that discuss this but they are all over the place. Please suggest. Thank You.
     
  2. JeffDG

    JeffDG Senior Member

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    Re: US citizen getting married to a H1B visa holder

    First, congratulations on your engagement!

    From a paperwork perspective, and Ron will correct me if I'm wrong I'm sure.

    Because she has in H-1B status, she is in what is called a "dual intent" category. That means she can maintain her status even though she does not intend her residence to be temporary. This is good news!

    Next, she can travel on her H1B so long as it is valid, including to India for your wedding. No problem, and again, because H1B is dual intent, there should be no issues upon return.

    Next, once you return, you can file an I-130 "Immigrant Petition for Alien Relative" and an I-485 "Petition to Adjust Status". Because a spouse is considered an "immediate relative", there is no waiting for a visa to become available, so you can file these at the same time.

    Because the marriage is new, it is likely she will be issued a Conditional Permanent Residence status. Expect processing to take ~6 months/ That means that it only lasts 2 years. 90 days before this expires, she will file a petition to remove conditions, and presuming the marriage is not fraudulent, she will then receive a full Permanent Resident status.

    Finally, one year later (subject to continuous presence and some other rules), 3 years after receiving her PR status initially, she will be eligible to apply for naturalization and become a US Citizen if she wishes to do so...no obligation there, her Permanent Resident status is good forever.
     
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  3. kbg

    kbg Junior Member

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    Re: US citizen getting married to a H1B visa holder

    Jeff,
    Thank you for the reply. So, I guess it is a better idea to apply for change of status after we come back from India. If we would like to travel to other places besides India, would it be possible to do so on her H1B visa? We are thinking about going to Tahiti once we are married, would that be possible?

    Also, I heard that she needs to file for I 864, I 131 and I 765 too (too many numbers :p), is that true? Please advise.

    Thanks!
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: US citizen getting married to a H1B visa holder

    Jeff is essentially correct. In addition to what he has written, let me add that if your wife wishes to travel, she should either do so before filing for AOS or after she gets her advance parole. As a family based immigrant, she should not travel on her H1B after filing for AOS. Concerning your last question, yes, she should file forms I-131 and I-765 when she files her I-485.
     
  5. kbg

    kbg Junior Member

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    Re: US citizen getting married to a H1B visa holder

    As a summary,
    She needs to file I-130, I-131, I -485, I-765 and I-864 forms!
    And I can apply once I come back from India since its necessary that she stays in US once I apply.
    Am I missing anything?

    Thanks for all the help...! :)
     
  6. JeffDG

    JeffDG Senior Member

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    Re: US citizen getting married to a H1B visa holder

    I-693...immigration medical from a civil surgeon needs to accompany the I-485. Also G-325A Biographic Information Sheet.

    Both of these are laid out in the I-485 instructions.
     
  7. Gvashist

    Gvashist Junior Member

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    Re: US citizen getting married to a H1B visa holder

    Hi,
    I am a US Citizen who recently married a H1-B Visa holder in August. We are planning to do our traditional ceremony in December of this year. And Now his company is laying off, and he might be on the verge of getting laid-off. If he is sent back to India, can I apply for him from India-would our marriage in the states pose a problem? Or is it beneficial to apply when I come back? We are not sure if he will still have his job by that time, would it be a longer process than? Please advice, Thank you.
     
  8. primrose121

    primrose121 Junior Member

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    Re: US citizen getting married to a H1B visa holder

    Hi Ron,

    I have a question about EAD application.
    My H-1B will expired on June 1, 2012 (around 6 months from now) and I am now ready to send out paperwork for Green Card application. I am sending out I-485, I-130 together including G325A.
    I was not planning on submitting EAD application at this time, but do you think I should?
    I understand that I can apply for EAD later also, so I was not too worried about it, but i would like to to ask your advise.
    Also, when we go to the interview, I heard that they basically approve/deny the case already, is that true?
    In that case, does that give me a permission to work even though I would not receive the Green Card itself until later?
    Is there a grace period or some sort to allow me to keep working in case my H-1B visa would expire before I get Green Card?

    Thank you very much for your help.
     
  9. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: US citizen getting married to a H1B visa holder

    Why don't you apply for adjustment of status right now? I realize that you want to travel in December, but if that can be put off a bit, your husband can go home using advance parole. In the alternative, file an I-130 for him right now. It will take about six to nine months for all of the paperwork to get processed to the point where he will be interviewed for an immigrant visa in India. The only other choice available is for him to get another H1B job, come back as an H1B, and then apply for AOS at that time. The fact that he is married to a U.S. citizen is not a problem as far as the H1B is concerned. No matter what you elect, get that I-130 on file ASAP.
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: US citizen getting married to a H1B visa holder

    I always recommend that people apply for an EAD and advance parole when the apply for AOS. You pay for it anyway as part of the $1.070 filing fee, so you might as well get it. You never know when you might need it. Also, if you are one of those people who wants to insist on exhausting your H1B time unnecessarily while you are an AOS applicant, having an EAD will protect you in the event your employer fails to take the necessary steps to keep your H1B status valid. This will ensure that you remain eligible to adjust status, since you will be able to show the USCIS that even if your H1B status was void, you at least had a valid EAD.
     
  11. primrose121

    primrose121 Junior Member

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    Re: US citizen getting married to a H1B visa holder


    Thank you very much for such a quick reply, Ron!
    Okay, I was debating if it is better to take longer time to prepare paperwork or just send out what is needed for sure right now and apply for EAD later.
    I will try my best to work on EAD as quick as possible then!

    Thank you again!
     
  12. primrose121

    primrose121 Junior Member

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    Re: US citizen getting married to a H1B visa holder

    As you advised me, I filed those two documents and sent my package out.
    But..... I just noticed that I forgot to enter my birth state/country on I-130 form..... It was too long to type it in, so I was going to enter by hand..... But I forgot to fill in.....
    Should I send in another I-130 form again with that information or should I wait until they return my I-130 with missing infotmation?
    I can't believe I did that..... But now I need to focus on fixing it quickly and properly.
    I would appreciate your input about Rhis matter.

    Thank you again in advance!
     
  13. letypka

    letypka Junior Member

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    Re: US citizen getting married to a H1B visa holder

    Hi Ron, I was wondering - what kind of problems can occur if you leave the US after applying for Green Card (is it forbidden or is it just not a good idea)? I just got married to a US citizen (I am in the US on H1B visa) and we were thinking about applying for a GC sometime soon, but we are also planning a traditional wedding ceremony in my country in September this year. Also, as part of my job, I generally need to travel outside the US (to conferences), so it could be difficult to find a time where I can be in the US for an extended period of time.
     
  14. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: US citizen getting married to a H1B visa holder

    When you apply for adjustment of status, you can get advance parole about 90 days later (assuming you file for AP at the same time). With advance parole, you may travel in and out of the U.S. while your AOS is pending.
     
  15. letypka

    letypka Junior Member

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    Re: US citizen getting married to a H1B visa holder

    Dear Ron,


    My husband and I are going to start my Green Card Application process sometime this month. We have few questions about how to fill out these forms.
    Would you mind to help us with filling in our forms? I know how to answer to most of the questions, but there are some things I am not sure about (i.e., what is the A# and how can I check whether I have it)?
     
  16. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: US citizen getting married to a H1B visa holder

    Like most lawyers, we don't consult on cases. We either handle them completely or have nothing to do with them. If you download the instructions to the forms, you will find very detailed, step-by-step guidance.
     
  17. M70

    M70 Junior Member

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    Re: US citizen getting married to a H1B visa holder

    Ron,

    I have been reading quite a lot recently after a silly mistake on my part literally turned my world upside down. This is probably the closest thread I can find.

    My now wife (US citizen) and I (UK citizen) got married this Oct. 2012. My H1B visa expired end Sept. but application for an extension was made in August. We made a day trip to Canada in Nov. and I was denied entry back to the US. This was because my H1B had expired. Silly it was, I was badly informed. After an hour of questioning and waiting I drove and returned to Canada. I ended up now back in the UK and and have been for the last 6 weeks. Now I have a complete valid H1B visa sponsored by my company. I am to return to the US under H1B status in the coming few weeks. Hopefully my return to the US is a smooth one.

    Back in Nov. we talked about applying for a green card as soon as we got back from the day trip to Canada. This is because of my now wife I am considering the green card option. If it was not her, I would not even consider working in the US option from the onset. This is not because I do not like the US, it is simply because my whole family is in the UK (I love them all dearly and I miss them a lot). My wife also loves her US family dearly and she loves her work in the US. I made the decision to give up what I could have in the UK so to be keep our relationship.

    My question is.

    IF one was to apply for a green card say end Dec., 2012 whilst still under a valid H1B status (I-94 and H1B visa all valid) and then decides to travel abroad (outside of the USA) say by mid Jan., 2013, would it be a problem to return back to the US under H1B visa and does it impact the green card application process? The timing does does NOT provide sufficient time to apply for Advance Parole before the outbound travel date.


    Some forums indicated travel whilst green card application is still in progress may not be an issue. There are others that indicated such travel plan should NOT be made before AP is on hand. The USCIS website has a lot of information but very difficult to locate the details that pertains to the appropriate scenario(s).

    I would dearly like your view(s) or anyone who may be able to assist with their comments.
     
  18. JeffDG

    JeffDG Senior Member

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    Re: US citizen getting married to a H1B visa holder

    You should be OK.

    H1 is a status that permits "dual intent", so you can maintain your H1B while at the same time having an Adjustment of Status application pending. USCIS has guidance in writing that says that travel outside the US with an AOS pending is considered "abandoning" that application, except for H1 and L1 visa holders.
     
  19. M70

    M70 Junior Member

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    Re: US citizen getting married to a H1B visa holder

    Thank you JeffDG, do you have the link to the specific content? I am somewhat nervous about the application process and all the conditions that may jeopardize the applications green card/ AOS. The experience with the border agent in Nov. was not friendly. I just would like to print something out officially so I have it on hand to share if questioned. This would be more like putting my mind at rest.
     
  20. bnidel

    bnidel Junior Member

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    my wife is currently on an H1B visa and we are now filing our I-130 form and then change of status as suggested to do at the same time. However, she is leaving her job. She will then lose her H1B correct? She can then file for work authorization which takes up to 90 days - also correct? That will allow her to then work while not on H1B but can she travel at that point out of the country and back to the us?
     

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