Pending Visa

[Nico22 68]

Hello Everyone,

i need help on something.

Me and my Fiance is planning to do the Fiance visa we remember that her B2 working visa is still on process. Here's the story.

Last year June 2015 she has a visa of B1 business visa bcoz her company in the philippines opened a new branch in Guam so the employer sponsor the Visa for her. valid till December 2015. Before the visa expires her employer applied for a renewal on December for B2 visa temporary worker. Her employer told her that she can stay in Guam as long as the renewal of visa is on process. But on February she had to go back to the Philippines bcoz her dad passed away so she couldn't go back in Guam bcoz her visa was already expired. Now it's been a year since the employer applied for renewal but they haven't got any news about it. So i was wondering if there's going to be a problem if we apply for a fiance visa. She doesn't want to go back to Guam anymore bcoz she found a job in the Philippines. I hope you can help me. i will appreciate it. Thanks.

[Boiler 45,525]

No such thing as a B2 working visa, B2 is for visitors.

[Nico22 68]

oh i'm sorry, i meant the H2B visa.

Edited November 5, 2016 by Nico22

[Boiler 45,525]

What was she doing in Guam?

[Nico22 68]

What was she doing in Guam?

her company in the philippines opened a new branch in Guam so they sponsored her a business visa.

[DaveSana 13]

Okay, there seem to be multiple issues here.

First, what visa did she originally have - a B1, B2, or H2B visa? We need to get that straight.

Secondly, a B2 visa is NOT a "working visa", it is a Tourist Visa.

A B1 visa is a "Business" Visa for meetings. It is NOT FOR WORKING!
To work using a B1 Business Visa is illegal.
So, you might have issues with that if she actually worked on a B Visa.

Thirdly, you say that she does not want to go back to Guam, but found a job in the Philippines!
So, why does she need a US visa at all? Because you want to marry her?

If that is so, then you have to establish to their satisfaction that their exists a bonafide relationship, when you file the fiancee application.

It would have been possible for her to marry you and apply for Adjustment of Status while she was lawfully working in the US earlier, but that opportunity is now gone.

Edited November 5, 2016 by DaveSana

[Nico22 68]

Okay, there seem to be multiple issues here.

First, what visa did she originally have - a B1, B2, or H2B visa? We need to get that straight.

Secondly, a B2 visa is NOT a "working visa", it is a Tourist Visa.

A B1 visa is a "Business" Visa for meetings. It is NOT FOR WORKING!

To work using a B1 Business Visa is illegal.

So, you might have issues with that if she actually worked on a B Visa.

Thirdly, you say that she does not want to go back to Guam, but found a job in the Philippines!

So, why does she need a US visa at all? Because you want to marry her?

If that is so, then you have to establish to their satisfaction that their exists a bonafide relationship, when you file the fiancee application.

It would have been possible for her to marry you and apply for Adjustment of Status while she was lawfully working in the US earlier, but that opportunity is now gone.

I'm so sorry for confusion. She had the H1B visa and then the employer applied the H2B for her. it's been almost a year now and they haven't hear anything from the immigration yet. right now she was in the philippines working. she doesn't want to waste time waiting for the result. my main concern is if the H2B visa is still on process and we want to to the fiance visa. would that be a problem?

[DaveSana 13]

Sure, no problem. That makes a difference (H1B/H2B vs B visas). No worries.

The earlier visa does not seem to me to be a problem, as long as she was not out of status while in Guam. You have to be really clear on that point.

Was she in lawful status when she left the US/Guam or not, is the key. Don't just believe what "the company said". You have to actually find out what the USCIS says is the truth.

If she, in fact, overstayed, according to the USCIS, THEN you have a problem.

If not, then you are okay.

You just have to convince them that the relationship between the two of you is legit.

Otherwise, it might look like she, and you, are just doing it for the employment opportunities.

[DaveSana 13]

Sorry for the two typos in the earlier message, I was not able to edit the posts...

"Okay, there seem to be multiple issues here." was meant to be "Okay, there seems to be multiple issues here."

i.e. seem -> seems

---and--

"If that is so, then you have to establish to their satisfaction that their exists a bonafide relationship, when you file the fiancee application."

was meant to be -

"If that is so, then you have to establish to their satisfaction that there exists a bonafide relationship, when you file the fiancee application."

i.e. their -> there

Sorry for the typos - "I do know grammar"...LOL

Edited November 5, 2016 by DaveSana

[Nico22 68]

Sure, no problem. That makes a difference (H1B/H2B vs B visas). No worries.

The earlier visa does not seem to me to be a problem, as long as she was not out of status while in Guam. You have to be really clear on that point.

Was she in lawful status when she left the US/Guam or not, is the key. Don't just believe what "the company said". You have to actually find out what the USCIS says is the truth.

If she, in fact, overstayed, according to the USCIS, THEN you have a problem.

If not, then you are okay.

You just have to convince them that the relationship between the two of you is legit.

Otherwise, it might look like she, and you, are just doing it for the employment opportunities.

well right now the H2B visa is still on process and they haven't heard anything for almost a year now. i was just wondering if there would be a problem if we file the fiance visa knowing the h2b visa is still on process.

[DaveSana 13]

The real problem is one of status - was your girlfriend out-of-status while she was in the US?

That is the key.

The government gives the employer an H2B visa for a limited timeframe. During that timeframe the person is allowed to be in the US.

When that timeframe passes, the permission to be in the US expires, and from that point on the person is illegally in the country, unless they have some other lawful permission to be there.

So, does "applying" for permission to be in the country GIVE you the right to stay in the country? That has to be answered legally. The USCIS can answer that definitely, as a matter of law.

As for a renewal or new application being in-progress, those applications do not matter vis a vis your applying for a fiancee visa, as mentioned earlier.

So, know for a fact if she was ever out-of-status. If not, you are good to go. If so, then lawyer-up.

[Nico22 68]

The real problem is one of status - was your girlfriend out-of-status while she was in the US?

That is the key.

The government gives the employer an H2B visa for a limited timeframe. During that timeframe the person is allowed to be in the US.

When that timeframe passes, the permission to be in the US expires, and from that point on the person is illegally in the country, unless they have some other lawful permission to be there.

So, does "applying" for permission to be in the country GIVE you the right to stay in the country? That has to be answered legally. The USCIS can answer that definitely, as a matter of law.

As for a renewal or new application being in-progress, those applications do not matter vis a vis your applying for a fiancee visa, as mentioned earlier.

So, know for a fact if she was ever out-of-status. If not, you are good to go. If so, then lawyer-up.

I guess she was out bcoz her H1B expired on december 2015.

[DaveSana 13]

Yes, I share your concern.

If she overstayed - she overstayed.

If applying for permission/renewed visa gives someone permission then she is okay.

So, just look for the legal answer to that and you will know where you stand.

Hope that is helpful.

[Nico22 68]

Yes, I share your concern.

If she overstayed - she overstayed.

If applying for permission/renewed visa gives someone permission then she is okay.

So, just look for the legal answer to that and you will know where you stand.

Hope that is helpful.

She overstayed for 2 months. Right now she back in the philippines and doesn't have any visa on hand.

[Californiansunset 336]

I guess she was out bcoz her H1B expired on december 2015.

If there was a pending petition with USCIS after her H1B1 expired, she was out of status but did NOT accrue any unlawful presence. She's fine. She needs to obtain all documents about the application for the extension (Notice of Action), take a screenshot of her current status on the USCIS site) and some sort of proof when she left Guam (boarding passes of the flight back or I guess people in the Philippines get some sort of stamp when they return to their country so that is fine too). In case she gets asked about it at the interview it's good if she can show that there was a pending application after her H1B expired.