Marriage Based Adjustment of Status for H-1B Visa Applicants Who Are Marrying US Citizens vs. Green Card Holders
Numerous H-1B visa holders request an adjustment of status through their employers, but they must wait a long time before getting their Green Cards. This is one of the main reasons that even if you have an employment based Green Card pending, many H-1B holders with US Citizen or Permanent Resident spouses opt to have their spouses sponsor them right after they get married.
In this article we will discuss some questions that our H-1B beneficiaries often have when we begin their Adjustment of Status through marriage.
How to Get Married and Get a Green Card While on an H1-B Visa?
The H-1B visa is a "dual-intent" visa, allowing its bearer to enter the country to work while also applying for permanent residency. In other words, those with H-1B visas can apply for Green Cards from the United States without fear of being charged with lying about their purposes for traveling to the United States (immigrant intent).
If you are married to a United States citizen or holder of a Green Card and are unsure whether your US company will start the application process, you can apply for the Green Card based on your marriage. Your ability to apply for an H-1B Green Card will rely on several circumstances, including whether you are married to a US citizen or someone who has a Green Card. In fact, you can begin the family based Adjustment of Status via marriage even if your employer already has an employment based Adjustment of Status pending. These two cases run on completely separate tracks and do not interfere with each other.
Two Ways to Obtain a Green Card
Depending on whether your spouse is a citizen of the United States or a lawful permanent resident, there are two ways to transition from the H-1B to the Green Card.
PATH 1: YOUR SPOUSE IS AN AMERICAN CITIZEN
The process for obtaining a marriage Green Card is simpler for spouses of citizens of the United States. They begin the procedure by submitting the necessary USCIS forms.
Filing of two forms
An H-1B visa holder must submit the following two main USCIS forms to get the procedure started:
The I-130 family sponsorship form, which establishes your relationship with your spouse;
The I-485 Green Card application is used to apply for a Green Card.
You can use a procedure called "concurrent filing" to submit both USCIS petitions simultaneously, which will expedite the procedure and save you time. Of course, there are some other supporting forms which should also be filed such as for the work permit/EAD and Advance Parole as well as evidence of relationship documents.
If you want to travel internationally, outside of the US, you can get travel permission after filing Form I-131 with the Form I-485.
If you suddenly depart the country without travel authorization while your application is still being processed and you do not have valid H-1B status, the government of the United States will consider you to have abandoned your Green Card application. In this case, you will have to start the procedure from scratch. The only problem is that you may not be able to enter the United States as your H-1B visa is not valid in this scenario. It’s likely that you would have to Consular Process which means you may be stuck outside of the United States for nearly two years while the case is pending. If your H-1B is valid you will be able to travel internationally without fear of abandoning your Marriage Based Adjustment of Status case as long as long as you have the current employer’s H-1B stamp in your passport issued by the Consulate.
How Can I Obtain a Work Permit?
You should apply for a work permit with your case because the application procedure might take some time. The "Employment Authorization Document," or Work Authorization Card, is the formal name for this application. Your work permit will be approved in around 180 days if you submit an application for the Work Authorization Card together with your Green Card application. Of course this card can come sooner or later depending on USCIS processing times.
If your H-1B expires during the pendency of the case and you do not have a timely filed H-1B visa, you can only resume work after obtaining new work authorization.
PATH 2: YOUR PARTNER HAS A GREEN CARD
The process is a bit more difficult for H-1B visa holders who want to marry a lawful permanent residence to get a Green Card. Additionally, processing times may be longer. The first thing to be sure of is that the Visa Bulletin for the month you are filing in is current for this category (F2A Category). If it is not current, you will have to wait until it is and you must be in valid non-immigrant status when you file.
Mandatory Forms
Couples with H-1B visas whose spouse has a Green Card must additionally submit two USCIS forms assuming that the H-1B spouse is in valid status at the time of filing:
Form I-130, the Family Sponsorship Form, which demonstrates their connection
The I-485 petition form for a Green Card
Can Green Card Holders File Documents Concurrently?
You can submit your application for a marriage Green Card after your priority date for your immigrant visa category is current. Although this category has been current for a number of years, it will likely not be current either late spring or early summer of 2023.
How Can I Obtain a Work Permit?
Married legal permanent residents with an H-1B visa are also eligible to apply for a work permit at no additional expense. However, you should be aware that Form I-765 for a work permit may only be submitted concurrently with your real Green Card application. The H-1B visa will allow you to stay and work in the country up to the time when you apply for a Green Card based on your marriage.
How long does it take to go from an H-1B to a Green Card for marriage?
If you're married to a US citizen, Green cards typically take between 8 and 13 months to arrive for spouses of US Citizens. For spouses of those with Green Cards, the wait times can be longer. However, because not all field offices have the same processing times, where you reside might also affect how long you must wait.
Also, keep in mind that you will be given a conditional Green Card with a two-year validity period if your marriage is less than two years old at the time you applied for Adjustment of Status.
If I re-enter the United States using my advance parole travel document while my Adjustment of Status application is pending will I lose my H-1B status?
Before using Advance Parole, there are several pros and downsides to taking it into account.
Advantages of using Advance Parole
You do not need to apply for a fresh H-1B visa stamp, which is an easy method to skip the laborious visa application procedure at a US Consulate.
Precautions when using Advance Parole to enter the United States
If you re-enter the country on Advance Parole, your H-1B status will theoretically no longer exist. Also ineligible for admission under H-4 nonimmigrant status will be your dependents. Many people seeking status changes without knowing their visa situation have trouble obtaining some privileges, such as gaining a driver's license. Therefore, you must make sure that you intend to abandon your H-1B status by using your advance parole card or EAD.
We advise you to travel with a copy of your I-485, Adjustment of Status receipt notification, H-1B approval notice, as well as your most recent pay stubs. The Advance Parole application must be approved before you leave the United States to be used for re-entry.
Can I re-enter the United States using an H-1B stamp from a previous employer?
Yes, if your former company still has a valid visa stamp on file for you and no violations of your current H-1B sponsor's employment agreements have occurred.
How I can assist….
Applying for a Green Card can be a complex process, especially when it comes to marriage-based applications that can take a considerable amount of time. However, hiring a lawyer from the outset can provide numerous benefits and save you both time and money, regardless of whether you are married to a US citizen or Green Card holder. This can be especially advantageous when transitioning from an H1-B visa to a Green Card and eventually US citizenship. For over 16 years, our attorneys have helped clients relocate their families to the United States.
Sharon Khunkhun, our experienced attorney, can assist you in completing USCIS forms by analyzing your evidence, preparing you for the USCIS officer interview, and guiding you through the Green Card application process. With our attorney overseeing the entire process, you can rest assured that no errors will be made, and you will receive your Green Card as quickly as possible.
Should you have any questions please do not hesitate to contact us for more information. We understand that these are difficult times but we are available to take your call so we can discuss the best options for you!
To get in touch with one of our attorneys, call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation.