Adjustment of Status - HB1 visa -> marriage -> green card???

[jdude 0]

I've got a couple questions regarding marriage and immigration that I was hoping somebody could help me with. This situation is more complicated than the average, so unfortunately none of the standard FAQs mention my specific questions.

I am an American born and raised in Canada. I am now studying here in the USA (working on my Masters degree in Houston at Rice University). My girlfriend from Canada (now fiancé) has been living with me for the past 5 months. She came to visit me in Houston, applied for a job as a teacher and was hired. She then went through a rather complicated and drawn out process of getting an HB1 visa, which finally worked out. She had to go home to get her visa issued (something we Canadians have to do thanks to the visa waver program) but she has the visa now. Unfortunately, the whole visa process took so long that she no longer has a job (but she does have the HB1 visa). We are told that the visa can be used to work as a teacher still, as long as she gets a job with the same school district that the original visa was issued to. Unfortunately, we aren't sure how easy it will be for her to get a job now that the school year has started and most of the jobs in the Houston school district are filled.

Anyways, shortly before she left, we decided that we were going to get married soon!!!

My question is: If we get married this month, and she has trouble finding another teaching job on her HB1 visa, will it be possible for her to get a work authorization as my spouse and find another job? I ask this because we're no longer confident that she will be able to work on the HB1. She could apply to transfer the HB1 to a different employer but that is filled with restrictions and would cost thousands of dollars and take many more months. Besides, if we are going to get married anyways, can't she be authorized as my spouse and avoid all that tricky HB1 stuff?

I should add that when she came into the USA, she did not say she was going to get married, only that she was going to work using her HB1 Visa. Would that be an issue relating to her application for a work authorization after we are married?

If anybody has any advice for us, please let me know. Thanks in advance!

[YuAndDan 153]

Please note, adjusting status soon after getting a non-immigrant visa can cause red flags, using an non-immigrant visa other than K-1 or K-3 for the purpose of immigrating is considered to be visa fraud.

See AOS guides:

http://www.visajourney.com/forums/index.ph...p;page=otheraos

http://www.visajourney.com/forums/index.ph...page=i130guide2

[nemu 0]

H1b is one of "dual intent" visas, the visa not prohibiting immigrational intent. Even with visas specifically prohibiting dual intent, things seam to work out at the end.

Anyways, to answer your question, if you got married you could apply for adjustment of status, work authorization, etc. Forms for that would I485 with concurrent I130, I765 ( Employment Authorization Document) and I-131 ( Advance Parole /Travel Document).

Go to "immigration timelines" to find out how long the processing would tak.

[Boiler 45,571]

Please note, adjusting status soon after getting a non-immigrant visa can cause red flags, using an non-immigrant visa other than K-1 or K-3 for the purpose of immigrating is considered to be visa fraud.

See AOS guides:

http://www.visajourney.com/forums/index.ph...p;page=otheraos

http://www.visajourney.com/forums/index.ph...page=i130guide2

That is sooooooo wrong.

Its a H1b Visa she has.

Anyway she can have it transferred to another employer, marrying you initially would have been a lot quicker, but she needs to act now as she is out of status.

I would marry immediately, file for AoS and EAD and she can then in a couple of months for anyone without the cost and hassle of transferring.

http://www.kkeane.com/ is a good site explaining H Visa's

[Saddle Bronc 124]

H1b is one of "dual intent" visas, the visa not prohibiting immigrational intent. Even with visas specifically prohibiting dual intent, things seam to work out at the end.

Anyways, to answer your question, if you got married you could apply for adjustment of status, work authorization, etc. Forms for that would I485 with concurrent I130, I765 ( Employment Authorization Document) and I-131 ( Advance Parole /Travel Document).

Go to "immigration timelines" to find out how long the processing would tak.

I-131 and I-765 are optional for H1-b holder doing AOS, as (if holder stays in same job), the H1-b (which, if near expiry, can be extended in yearly increments) can be used AS both EAD and Travel Document. This can save a little filing cost.

[meauxna 15]

Where is the H-1B girlfriend now?

[jdude 0]

Thanks for your replies everyone, thanks so much for the info

To answer your question, she is back in the USA. We had a mixture of bad advice from lawyers, and lack of commitment on the part of the school that petitioned for her. Basically, now she is back with me and she no longer has a job.

The lawyers acted like this would not be a problem until after she returned when they informed us about the "out of status" thing (talk about bad lawyers), which scares us both as we never wanted to be in violation of anything.

Yes, getting married initially would have been a lot faster, but when the employer offered to petitioned for her, we thought that was going to be the best option. We were sure proven wrong on that though.

No, she is not using the H1B for immigration purposes, she got the H1B with the intent of working as a teacher... although we were always planning on getting married (we have been together for 2 1/2 years now). It would have been much easier, as somebody said, to get married instead of applying for the H1B, so hopefully that makes it obvious that it's not visa fraud. We are getting married either way - I am just curious how the whole adjustment of status will work for her in the case that she does not get another job teaching soon. Nobody else seems to have ever been in the situation of having an H1B and losing their job before (including the lawyers) , so it's kind of a scary situation for us both. Any more information you could provide would be really appreciated. Thanks!

Where is the H-1B girlfriend now?

[meauxna 15]

Thanks for your replies everyone, thanks so much for the info

To answer your question, she is back in the USA. We had a mixture of bad advice from lawyers, and lack of commitment on the part of the school that petitioned for her. Basically, now she is back with me and she no longer has a job.

The lawyers acted like this would not be a problem until after she returned when they informed us about the "out of status" thing (talk about bad lawyers), which scares us both as we never wanted to be in violation of anything.

Yes, getting married initially would have been a lot faster, but when the employer offered to petitioned for her, we thought that was going to be the best option. We were sure proven wrong on that though.

No, she is not using the H1B for immigration purposes, she got the H1B with the intent of working as a teacher... although we were always planning on getting married (we have been together for 2 1/2 years now). It would have been much easier, as somebody said, to get married instead of applying for the H1B, so hopefully that makes it obvious that it's not visa fraud. We are getting married either way - I am just curious how the whole adjustment of status will work for her in the case that she does not get another job teaching soon. Nobody else seems to have ever been in the situation of having an H1B and losing their job before (including the lawyers) , so it's kind of a scary situation for us both. Any more information you could provide would be really appreciated. Thanks!

Where is the H-1B girlfriend now?

I'm reluctant to say a lot, to tell you the truth. My instinct is that everything is probably fine, but there are a number of potential stink bombs --in my opinion only--in what you've posted. My recommendation would be to find a lawyer you can live with (aila.org is their professional association) and put everything out there so she can evaluate it.

I'm not sure what your complaint is about the previous lawyer and the 'out of status' thing. If your GF entered as an H1-B and is not working for her employer, she is out of status as I understand it. She needs to discuss with a lawyer what she knew at what time and lay out the timeline of all these events. Again, there is likely nothing 'wrong', but I'm not a lawyer and I don't have all of the information. You might not want to post all the information online, either, until you've had this consultation.

The H1-B is a dual intent visa, so she is allowed to adjust her status from H1-B *if* she was admitted as an H.

Once you've consulted a lawyer, and hopefully made a plan, you can certainly file your own cases. During the AOS/Adjustment of Status process, which results in a Green Card aka Permanent Resident status, your spouse can apply for a work permit and travel permission. They take 3 months to receive. If you do not have a lot of free time for research, consider hiring someone to help you get it all right. There are lower cost options.

I would recommend that to be on the conservative side, your GF not leave the US until you have something filed and have a travel document. If she leaves without one, she may not be coming back in for awhile. As you can see, sometimes there are complications and a lot of complexities. Any time you've got a previous immigration history, consultation with a lawyer is an extra good idea.

[jdude 0]

My complaint about the previous lawyer is this.

They did not tell us that if she went back home and entered the US on the H1B that she would be "out of status". They simply told her to go home, get the visa, and come back and try to find a job with the same school district that petitioned for her. Then when she got back, they told her that she was out of status and demanded that we pay them $150 if we wanted more information. That's when I started doing research online and posted here. I'm a poor grad student and we already payed a lot of money for the H1B, and besides the lawyers were rude to us so I didn't want to go in for their $150 consultation. I would consider seeing another lawyer, it's jut the cost that worries me.

We are researching our options now. Any additional insights would be appreciated.

[meauxna 15]

My complaint about the previous lawyer is this.

They did not tell us that if she went back home and entered the US on the H1B that she would be "out of status". They simply told her to go home, get the visa, and come back and try to find a job with the same school district that petitioned for her. Then when she got back, they told her that she was out of status and demanded that we pay them $150 if we wanted more information. That's when I started doing research online and posted here. I'm a poor grad student and we already payed a lot of money for the H1B, and besides the lawyers were rude to us so I didn't want to go in for their $150 consultation. I would consider seeing another lawyer, it's jut the cost that worries me.

We are researching our options now. Any additional insights would be appreciated.

I don't know enough about H1-Bs to know if that is kosher or not--clearly my first thought is 'not' but this is another reason to get a separate professional opinion. You need to be crystal clear which status she was admitted to and what her current state of affairs is. Again, the H1-B is dual intent, so that is off the table. But, something happened between the job offer, the Embassy and the border that you should hash out in private.

btw, I think it's not normal for the employee to pay for their own H1-B. Usually the employer picks up the bill.

There is a better group for you to post to for starters--if you Usenet it is alt.visa.us or you can get it on the web here: http://britishexpats.com/forum/forumdisplay.php?f=31

Hang in there, don't panic--just keep reading for a bit, and do look up some aila lawyers. They're not all rotten.

If I think of anything useful, I'll be back.

[Dr_LHA 3]

As soon as a H1-B holder loses their job, their H1-B visa is invalid. There's no grace period and H1-B holders are supposed to leave the country as soon as possible after they lose their job, or obtain another visa. Having a visa stamp means ####### all if you don't have the sponsoring job to go along with it I'm afraid.

BTW - I was on an H1-B for 7 years, so have some idea what I'm talking about.

My advice, you need to see a lawyer quick-smart. Things could get complicated real quick.

Edited November 7, 2006 by dr_lha

[Dr_LHA 3]

btw, I think it's not normal for the employee to pay for their own H1-B. Usually the employer picks up the bill.

Some do, some don't. I've had an employer ask me to pay the filing fee before, which was $130 at the time. I certainly didn't have to pay for lawyers or anything else though.

[jdude 0]

Okay, i have some good news. She's not technically "out of status", as she still has a relationship with her employer (the school district has not withdrawn their petition for her yet, because they are waiting for her to find another principal to work for). The problem is that they even admitted that there are no job openings with other principals, and that in a few weeks, they would most likely withdraw the petition (they gave us no absolute time frame).

So anyways, this changes things a little. I would not describe our situation by saying that she currently has status, but she foresees herself getting laid off in the near future. In this case, we want to apply to change her status before her employment is officially terminated. It makes me feel a bit relieved to know that we're not breaking any rules! I guess that is why the lawyers told us that she "may" be out of status, but I feel like they should have known rather than making us do all the work to find out what the real story is.

Do you think they would be lenient towards a change of status immediately after she received her H1B, under these circumstances? She got her H1B, but now she knows that she will lose her job and so therefore she is going to apply for residency as my wife in order to not go out of status. It seems like a reasonable plan to me, and we have been living together for so long that it's only natural to get married. As I said before, that was always a part of the plan, we just thought she would be working with her H1B before we got married.

About the fees:

The way the school district here works is that they make you pay a most of it, equal to about $2250 and they pay the rest. They also have an agreement with a law firm, so you have no choice but to use that firm. I believe $1000 was for rapid processing (which was supposed to take 2 weeks but took 2 months, non refundable), and $1000 was the actual H1B fee, I think the $250 went towards the lawyers and the school district paid some other fees that were involved (I don't remember what but I know there was more). Also we just got a bill from the lawyer for $60 worth of photocopying (don't ask). There were about 50-100 international bilingual teachers who were hired by this district in this way, and all had to pay the same fees.

This wasn't a regular H1B but a "specialty worker" visa which was able to override the visa quota (due to the fact that the employer is non profit and government related), not sure if that makes a difference. You're lucky you didn't have to pay as much.

[Dr_LHA 3]

As long as you file for AOS while she is in status you won't have any issue.

[jdude 0]

That sounds good...

I have a small correction to make. I said "I would not describe our situation by saying that she currently has status..." but what I meant was "I would NOW describe our situation by saying that she currently has status..."

As long as you file for AOS while she is in status you won't have any issue.

Edited November 8, 2006 by j-a-x