Work Visa or Green Card for specialty employee married to USC

[SA&JG 1]

Hello all,

I have ran into an odd situation.

Background:

My Brazilian wife is an engineer at the same American company that I work. We were initially going to try and get her Green Card through the typical fashion and wait out the 12 months it usually takes for the I-130 to be processed. But she was recently placed on "Holding" status (read unpaid leave) with our American based company. So now she is at my home in the US on a tourist Visa just waiting on our company to find her a job.

Problem:

The issue we are facing is that our company doesn't have any more international jobs in the near future. But has many US based projects. We are trying to find the fastest way to get her back working, preferably in the US. Our company is not co-operating with providing her a work visa, as they tell us it is to costly... I think HR is very confused on what is needed. As they are saying we can have her EAD within a few months based off of her family green card.

Solution:

Is there any work visa's that have ties into the family based green card that can help expedite the process? Especially since she is a Specialty employee with a Bachelors equivalent? Or can anyone suggest a quick route based on our current situation?

This is a great website with lots of knowledgeable people, so I'm sure we can figure out a good solution.

[A'n'L 735]

So, to summarize: You are a USC, your wife (Brazilian) is currently in the US after entering legally on a tourist visa, her employer will not sponsor a work visa - but will give her employment within the US if/when she is eligible to work?

Does your wife have any urgent business outside the US? If not, you should look into filing for adjustment of status while she is here. This is legal since she did not enter the country with the intention to stay. She will have her EAD within approximately 3 months after filing. Is her company willing to wait that long?

The guide for this process is posted here:

http://www.visajourney.com/content/i130guide2

[SA&JG 1]

So, to summarize: You are a USC, your wife (Brazilian) is currently in the US after entering legally on a tourist visa, her employer will not sponsor a work visa - but will give her employment within the US if/when she is eligible to work?

Yes, she entered 3 weeks ago, and per our latest correspondence with the company she will likely have a job once she has a work permit.

Does your wife have any urgent business outside the US? If not, you should look into filing for adjustment of status while she is here. This is legal since she did not enter the country with the intention to stay. She will have her EAD within approximately 3 months after filing. Is her company willing to wait that long?

No urgent business, she is planning to stay her full 6 month tourist visa limit.

I have considered adjustment of status, but when i spoke to my immigration lawyer she informed me that if you file within 0-30 days of arrival it is immediately deemed Visa fraud as she must have entered with intent to immigrate.

The company probably would wait 3-4 months.

The guide for this process is posted here:

http://www.visajourney.com/content/i130guide2

[A'n'L 735]

I'm sorry your immigration lawyer gave you bad advice. The so-called 30/60 rule is an urban legend. The question of immigration intent was adressed at the border, and the officer who inspected her obviously found that she had none. You'll be perfectly fine to file AOS.

[Unlockable 7,314]

If you are married you can file AOS now. Your lawyer is misinformed.

And it will take some time before the EAD is in hand. Around 3 months or more.

Read the guides here on AOS and file as soon as you have everything in order.

[kzielu 1,149]

Hello all,

I have ran into an odd situation.

Background:

My Brazilian wife is an engineer at the same American company that I work. We were initially going to try and get her Green Card through the typical fashion and wait out the 12 months it usually takes for the I-130 to be processed. But she was recently placed on "Holding" status (read unpaid leave) with our American based company. So now she is at my home in the US on a tourist Visa just waiting on our company to find her a job.

Problem:

The issue we are facing is that our company doesn't have any more international jobs in the near future. But has many US based projects. We are trying to find the fastest way to get her back working, preferably in the US. Our company is not co-operating with providing her a work visa, as they tell us it is to costly... I think HR is very confused on what is needed. As they are saying we can have her EAD within a few months based off of her family green card.

Solution:

Is there any work visa's that have ties into the family based green card that can help expedite the process? Especially since she is a Specialty employee with a Bachelors equivalent? Or can anyone suggest a quick route based on our current situation?

This is a great website with lots of knowledgeable people, so I'm sure we can figure out a good solution.

Your absolutely best and fastest route to get her working is file for family based green card - in this case for Adjustment of Status. Any kind of work visa would require finding a new employer and in case of H-1Bs it would take until October next year until she can work and she would have maintain legal status. If I were you, I would be sending I-130/I-485/I-693/I-864 tomorrow (assuming you can get I-693 done that quickly).

[SA&JG 1]

Is there no way that this process can go wrong with-in the 30/60 days? I have found a lot of information that deems it a fairly strict rule/guideline, although it cannot be the legal determination to decline.

She entered with no intent to immigrate, but at this time she doesn't know exactly what day she will be returning to Brazil.

She was not thoroughly inspected at immigration like she has been in the past. One time she was IMO harassed and treated like she was attempting to immigrate or commit Visa fraud.

She has entered/passed through the US dozens of times in the last few years off of this tourist visa.

[Unlockable 7,314]

When dealing with immigration anything can happen.

While she is AOS she cannot leave the use until she has her travel, documents or her GC. Although the timelines we have stated to received those documents are 3 months it is possible it can take longer. There are people who have waited almost a year for them.

Best you can do is be well prepared. Have all your documents and evidence available.

After you file she can try for an expedite for the EAD by showing proof that she has a job waiting for her.

[SA&JG 1]

What would you consider evidence in this case? She came to my home just to hang out and take care of the home while I'm working in Angola. I will visit her later this month, and then in July her family is visiting Orlando theme parks so she will go with them.

Just curious as we don't really have any tangible/hard copy documents showing any of this. And since her job was lost she cant show that item as proof tying her to Brazil, and we worked together in Angola so the only thing the is a tie for Brazil is her parents house where she stays on her off days from work. And ultimately will return to once her 6 months are up.

[MacUK 983]

I think there is nothing stopping her adjusting status although I don't know if you being in Angola might have any effect.

The cynic in me would suggest your 'immigration lawyer' is either an idiot or trying to make it look like your case is more complicated than it really is. Complicated means more money for greedy lawyers.

[Unlockable 7,314]

What would you consider evidence in this case? She came to my home just to hang out and take care of the home while I'm working in Angola. I will visit her later this month, and then in July her family is visiting Orlando theme parks so she will go with them.

Just curious as we don't really have any tangible/hard copy documents showing any of this. And since her job was lost she cant show that item as proof tying her to Brazil, and we worked together in Angola so the only thing the is a tie for Brazil is her parents house where she stays on her off days from work. And ultimately will return to once her 6 months are up.

If she is adjusting in the US she doesn't need to show ties to her country. She needs evidence to prove she entered the US legally and that you two are officially married.

Are you not in the US with her? if not, this may make it a bit more difficult for her. There is a lot of leg work involved from the USC and the immigrant. You have to submit Affidavits of Support with taxes, bank statements, and pay stubs. Also, official copies (3 is suggested) of your marriage certificates needs to be obtained and sent. She also has to have a medical and biometrics done via appointments.

All of this is doable. But it would be better to have you with her during this process.

Edited June 21, 2016 by NuestraUnion

[SA&JG 1]

If she is adjusting in the US she doesn't need to show ties to her country. She needs evidence to prove she entered the US legally and that you two are officially married.

Are you not in the US with her? if not, this may make it a bit more difficult for her. There is a lot of leg work involved from the USC and the immigrant. You have to submit Affidavits of Support with taxes, bank statements, and pay stubs. Also, official copies (3 is suggested) of your marriage certificates needs to be obtained and sent. She also has to have a medical and biometrics done via appointments.

All of this is doable. But it would be better to have you with her during this process.

I work a rotational job, so i am in Angola for 8 weeks and home for 2 weeks. I think she can handle all the leg work. But is there anything required by me to take care of in person? Such as an interview?

You all have provided me with great information today, and i feel this may be our best option with getting her back to work soon as well as starting our life in the states earlier than we thought.

Thank you!

[kzielu 1,149]

I work a rotational job, so i am in Angola for 8 weeks and home for 2 weeks. I think she can handle all the leg work. But is there anything required by me to take care of in person? Such as an interview?

You all have provided me with great information today, and i feel this may be our best option with getting her back to work soon as well as starting our life in the states earlier than we thought.

Thank you!

Yes, you will have to attend the interview (which is mandatory in this case) with your spouse, also you will have to sign I-130 and I-864 and provide all supporting docs for I-864 (tax returns, pay stubs and so on). Don't remember if you have to sign I-485 but you easily figure it out.

[caliliving 606]

your case is not unusual.. it happens all the time..you dont need to make excuses as to why she overstayed, overstay is forgiven when married to a USC... your intent was determined at the border and they let her in.

get married and apply for the greencard.. now, you cant pick when your appointment is so you need to make sure you can make it! i think u will have a month notice (maybe 6 weeks) it depends where in the country you are and how fast they are processing!!!

if you have a decent job, you can get a lawyer to do all the paperwork (obviously a competent one!) haha or get her to do it.. she seems smart! its easy! you just need your marriage cert, taxes, long form birth cert., her long form translated in english.. a few things to sign off on! when you get close to the end she can go do the medical on her own.

she is in a good situation where she will have a job once she gets the GC.. sometimes that is the hardest part!!! so she should tell her company 4 months as she will ahve a work permit in her hand 3 months after you send the paperwork in!!!

you are in a good situation and this is not a problem at all:)

Edited June 22, 2016 by caliliving

[SA&JG 1]

All the paper work will be easy to do, my tax documents and all other relevant documents are already in hand, I have been preparing for this and the I-130 filling for a while. But then I just felt shutdown after my lawyer told me about this 30/60 day rule. It does appear to be a real rule... see updated 05/20/2016 document from https://fam.state.gov/fam/09FAM/09FAM030209.html

But if you read it as a Black and White document, and follow it to the tee. My wife (we have been married almost 7 months now) has not entered and within 30/60 days be Marrying and taking up permanent residence. She will only be taking up permanent residence. So i am becoming more comfortable with this everyone. I will discuss with my lawyer today and tell her about all of this and see if she will apply for AOS for us without refuting our case.

But since we are within about 7 days of passing this 30 day mark, i think we will wait for this at a minimum... Just to be on the safe side of caution.

From Paragraph g(2):

(U) Applying 30/60 Day Rule When Alien Violates Status: You should apply the 30/60-day rule if an alien states on his or her application for a B visa, or informs an immigration officer at the port of entry (POE), that the purpose of his or her visit is consistent with B status and then violates such status by:

(a) (U) Actively seeking unauthorized employment and, subsequently, becomes engaged in such employment;

(b) (U) Enrolling in a full course of academic study without the benefit of the appropriate change of status;

© (U) Marrying and taking up permanent residence; or

(d) (U) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

(3) (U) Inconsistent Conduct Within 30 Days of Entry: If an alien violates his or her nonimmigrant status in a manner described in 9 FAM 302.9-4(B)(3) paragraph g(2) within 30 days of entry, you may presume that the applicant misrepresented his or her intention in seeking a visa or entry. For a finding of an inadmissibility for inconsistent conduct within 30 days of entry, you must request an AO from CA/VO/L/A.

(4) (U) After 30 Days But Within 60 Days: If an alien violates his or her nonimmigrant status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4©(2)).

(5) (U) After 60 Days: If an alien violates his or her nonimmigrant status more than 60 days after admission into the United States, the Department does not consider such conduct alone to constitute a basis for an INA 212(a)(6)©(i) inadmissibility.