Can you file an I-129F petition if your fiance is already here?

[Erin B 10]

I am engaged to an H1B visa holder, we were planning on getting married and found out that my previous marriage was never officially ended due to an error in filing the paperwork. It was no big deal at the time because he is here on an H1B visa that he just received, so we thought we had plenty of time, I filed for divorce a second time, and it will be final July 13, 2009. He was laid off from his job on 2/13/09, and received notice that his employer will be reporting him to USCIS and he will need to leave the country by 3/10/2009.

We have heard that we should file an I-129F, but that appears to be only if your fiance is outside the U.S., not already here, but at the same time the paperwork has a section to fill out if your fiance is already here. Does he have to leave the U.S., if we will be getting married in less than 180 days of his visa expiring? We have heard that if he overstays by less than 180 days, it may be a non issue.

Also if he does go back to Guinea, and I apply with the I-129F and he returns here, what other forms have to be filed after we get married?

[pushbrk 12,883]

I am engaged to an H1B visa holder, we were planning on getting married and found out that my previous marriage was never officially ended due to an error in filing the paperwork. It was no big deal at the time because he is here on an H1B visa that he just received, so we thought we had plenty of time, I filed for divorce a second time, and it will be final July 13, 2009. He was laid off from his job on 2/13/09, and received notice that his employer will be reporting him to USCIS and he will need to leave the country by 3/10/2009.

We have heard that we should file an I-129F, but that appears to be only if your fiance is outside the U.S., not already here, but at the same time the paperwork has a section to fill out if your fiance is already here. Does he have to leave the U.S., if we will be getting married in less than 180 days of his visa expiring? We have heard that if he overstays by less than 180 days, it may be a non issue.

Also if he does go back to Guinea, and I apply with the I-129F and he returns here, what other forms have to be filed after we get married?

H1B visas are tricky. Yes, you can file an I-129F before he leaves but that's for a visa to enter later, not for permission to stay here.

[ThaitoUSA 15]

Would the OP legally be allowed to marry the beneficiary now, then file for adjustment?

[pushbrk 12,883]

Would the OP legally be allowed to marry the beneficiary now, then file for adjustment?

Marry, yes. Filing for adjustment is a big risk under the described circumstances, IMO. A quick consult with an attorney would be a good idea on this one.

[Bobby+Umit 161]

Would the OP legally be allowed to marry the beneficiary now, then file for adjustment?

Marry, yes. Filing for adjustment is a big risk under the described circumstances, IMO. A quick consult with an attorney would be a good idea on this one.

Concur with Pushbrk - best to talk to a lawyer.

Since it could be construed the marriage was to stop the person from having to leave the USA due to the H1B cancellation.

You will need to proceed very carefully on this one!

good luck!

[KimandRuss 0]

The OP stated that they are still married to someone else until July of this year. The beneficiaries visa seems to expire much sooner than that. So they can't marry 'now'.

Overstay's are usually forgiven by spouses of USC as long as your intention was not to immigrate on your last visit to the US (when he/she last entered on the H1b). You would simply wait, marry and file for AOS.

But, as pushbrk stated, there could be special circumstances with the H1B visa and you should consult with a 'reputable' immigration attorney ....or two .... to be certain you are taking the right steps.

Edited March 2, 2009 by KimandRuss

[Erin B 10]

The OP stated that they are still married to someone else until July of this year. The beneficiaries visa seems to expire much sooner than that. So they can't marry 'now'.

Overstay's are usually forgiven by spouses of USC as long as your intention was not to immigrate on your last visit to the US (when he/she last entered on the H1b). You would simply wait, marry and file for AOS.

But, as pushbrk stated, there could be special circumstances with the H1B visa and you should consult with a 'reputable' immigration attorney ....or two .... to be certain you are taking the right steps.

OP here, I am still legally married, much to my shock. We were supposed to get married before we even knew his H1B was expiring...we have been together for quite some time. I am hoping that will help in this case, since we have been living together for over a year, and we can prove we have been dating for almost two years. He has opted to not leave the U.S., since we will be married in July, and apply for AOS at that time. Hopefully it works out, I am concerned that the marriage will be seen as a scam, but we have many pictures of ourselves with myself and my family (over the last couple of years) which will hopefully show that we have been dating and this is a real marriage. I don't know what else to do at this point, he has been in the U.S. for ten years, and he thought he was finally secure since he got the H1B and then he got laid off!

[pushbrk 12,883]

The OP stated that they are still married to someone else until July of this year. The beneficiaries visa seems to expire much sooner than that. So they can't marry 'now'.

Overstay's are usually forgiven by spouses of USC as long as your intention was not to immigrate on your last visit to the US (when he/she last entered on the H1b). You would simply wait, marry and file for AOS.

But, as pushbrk stated, there could be special circumstances with the H1B visa and you should consult with a 'reputable' immigration attorney ....or two .... to be certain you are taking the right steps.

OP here, I am still legally married, much to my shock. We were supposed to get married before we even knew his H1B was expiring...we have been together for quite some time. I am hoping that will help in this case, since we have been living together for over a year, and we can prove we have been dating for almost two years. He has opted to not leave the U.S., since we will be married in July, and apply for AOS at that time. Hopefully it works out, I am concerned that the marriage will be seen as a scam, but we have many pictures of ourselves with myself and my family (over the last couple of years) which will hopefully show that we have been dating and this is a real marriage. I don't know what else to do at this point, he has been in the U.S. for ten years, and he thought he was finally secure since he got the H1B and then he got laid off!

If it weren't for the H1B, I would encourage you to go with your plan. However, because of the H1B, I'm encouraginging you in the strongest way to consult with a qualified immigration attorney BEFORE he overstays even a day.