Pending K-1 application vs H-1B visa

[d0n_the_dragon 0]

Hi guys! First time poster here. I was just wondering what the repercussions are of having a pending K-1 application for the beneficiary and the possibility of having her current employer file a H-1B visa. I've submitted the K-1 application for my fiance' and we're nearing the 60 day mark. Now she just told me that her current employer might have a job offer for her. What's usually the process for this? Just a couple of questions below.

1. What's USCIS going to think once they see that there is a pending K-1 application for her? In terms of her intent

2. Will they deny her work visa? Consequently, if they deny her H-1B visa, will this affect our current K-1 application?

3. If her H-1B gets approved and she successfully come here. Can I request USCIS to transfer her pending application to be processed here in the States?

I think I have a couple of more questions but those are the things that I want to know for sure right away. Thanks for the replies later.

[canadian_wife 1,808]

Welcome to VJ

I think asking us what USCIS will think is not really fair because each adjudicator is going to think different things. One may think that this girl really wants to come to the US to be with her fiance and is looking at all avenues. One may think, however, that she is just interested in coming to the US by any means necessary. Others may not think anything at all and adjudicate the petitions separatly.

They may deny her visa, I have no idea about the terms of her application. But if they do, it will not affect your K-1 but you will have to disclose it at the interview.

Visas are used to enter the country. So if she is already in the US on an H1B then another visa is not necessary, she will then marry and adjust status through you. The good thing is H1B's are dual intent so they will assume she will immigrate at some point.

Keep in mind, the H1B is a long process as well, your K-1 will likely be processed before the H1B

Good luck

edit to add - Jim is posting below me so listen to him and take what he says as the best advice you can get

Edited July 19, 2010 by canadian_wife

[JimVaPhuong 4,863]

As far as I know, there's no reason she can't have both a K1 and an H1B petition being adjudicated at the same time.

The process is that the employer will submit an I-129 (not the same as the I-129F you submitted), along with supporting documents. Because of the slow economy, the annual cap for H1B's for fiscal year 2011 has not been reached yet. However, if the visa is approved she can't begin working in the US before October 1, the beginning of the fiscal year.

1. What's USCIS going to think once they see that there is a pending K-1 application for her? In terms of her intent

I doubt USCIS will think anything about her intent, other than she's got a US citizen fiance who she intends to marry, and an employer she intends to work for. Both the K1 and H1B allow for "immigrant intent".

2. Will they deny her work visa? Consequently, if they deny her H-1B visa, will this affect our current K-1 application?

They shouldn't deny either visa specifically because of the other one. Each petition and visa application should be adjudicated on it's own merits. I don't know of any guidance in the field adjudicator's manual that would require USCIS to treat either petition differently because the other petition is pending or approved. However, whichever interview she attends first, she may be asked about the other visa petition. She should just answer honestly.

3. If her H-1B gets approved and she successfully come here. Can I request USCIS to transfer her pending application to be processed here in the States?

Are you talking about having her K1 application processed in the US? The answer would be a definite "no". A K1 visa is permission to enter the United States for a specific purpose. If she gets an H1B and comes to the United States then she doesn't need additional permission to enter. Further, the H1B is a "dual intent" visa. If she's in the US then she can marry you and apply for a green card. You won't need the K1 anymore.

I think the worst thing that could possibly happen is that the consulate might suspect she is playing somebody to get to the US - you, the employer, or both. As long as she has the normal required evidence and answers the questions sufficiently at the interview, I doubt it will be any problem at all. In fact, the mere fact that she has the qualifications for an H1B probably reduces the likelihood they'll suspect her relationship with you is primarily for immigration purposes. She can get to the US and ultimately immigrate without your help, which means there's little motive to play you for a visa. It would be dramatically different if she'd applied for an H1B and been denied before the K1 petition was submitted.

P.S. canadian_wife noticed I was posting because I'm horrendously slow at composing a new post. I usually spend a little time at least doing some cursory research, and proofing my posts for spelling and grammatical errors.