K1 visa then got married...Pending AOS...Would like to have H1B instead

[Jamimay 2]

Please help!☹️

I have a pending AOS application since January 2016. I am here in U.S theu K-1 Visa, got married before 90days...But i don't think the relationship is working ☹️☹️☹️ Can I apply a work visa while I'm here instead of pursuing our visa applied thru marriage?Please Help!?

 

I am planning to have a working visa while I'm here...any input? who among you experienced this type of situation?

 

thank you in advance 😭😭😭

[Transborderwife 4,666]

H1bs are effectively closed for the year.  Have you tried marriage counseling?

[Jojo92122 1,924]

You can not apply for a work visa.  A US employer must apply on your behalf.  Do you have a university degree?

[Jamimay 2]

41 minutes ago, Jojo92122 said:

You can not apply for a work visa.  A US employer must apply on your behalf.  Do you have a university degree?

Hi Jojo92122...Yes I do have...I think my employer too will agree to apply for me...

[Jojo92122 1,924]

Even with a US employer, it will still take time for you to get a work visa.  You have 90 days in the US with your K-1.  To get a work visa, you have to be able to stay legal.  You don't have enough time to get a work visa.  Getting a work visa will take longer than your allowed time in the US on the K-1.  You will have to return home and wait for a work visa.

[Cyberfx1024 7,980]

35 minutes ago, Jamimay said:

Hi Jojo92122...Yes I do have...I think my employer too will agree to apply for me...

Also what you don't know is that H1B visa holders are pretty much beholden to the company that got them visa, thus kinda like slaves for that company. Plus they are closed this year for any applications, and they closed within a few days of opening. What special skills do you have for a H1B visa? 

[Jamimay 2]

8 minutes ago, cyberfx1024 said:

Also what you don't know is that H1B visa holders are pretty much beholden to the company that got them visa, thus kinda like slaves for that company. Plus they are closed this year for any applications, and they closed within a few days of opening. What special skills do you have for a H1B visa? 

 

pm sent. Thank you

[Jamimay 2]

😞

[Allie D 39]

On 5/7/2017 at 9:43 PM, Jamimay said:

I have a pending AOS application since January 2016. I am here in U.S theu K-1 Visa, got married before 90days...But i don't think the relationship is working ☹️☹️☹️ Can I apply a work visa while I'm here instead of pursuing our visa applied thru marriage?Please Help!?

I would contact a lawyer to discuss your options. H-1B is a non-immigrant visa and you have already demonstrated the intent to immigrate. You applied for an immigrant K-1 visa, entered the USA, and married a US Citizen.

[Allie D 39]

On 5/7/2017 at 11:33 PM, cyberfx1024 said:

Also what you don't know is that H1B visa holders are pretty much beholden to the company that got them visa, thus kinda like slaves for that company.

This is not true. If the employee can find another employer to sponsor his H-1B visa, this employer can file a new H-1B petition. No permission is needed from the employer's current company. The new petition is not subject to the H-1B cap/quota and can be filed at any time during the year. However, the petitioning employer does need to show that the worker has specialty skills, will be on the same pay scale as US citizen and permanent resident workers, etc. That is, all the conditions that had to be fulfilled for the original H-1B also apply.

 

Even though the H-1B cap-subject process has been closed for the current year, it's possible to get a cap-exempt H-1B through certain institutions. I believe you can apply any time during the year but you should cross-check with a lawyer/USCIS.

Edited May 10, 2017 by Allie D

[geowrian 22,337]

19 minutes ago, Allie D said:

I would contact a lawyer to discuss your options. H-1B is a non-immigrant visa and you have already demonstrated the intent to immigrate. You applied for an immigrant K-1 visa, entered the USA, and married a US Citizen.

H-1B is a dual intent visa. So while it is non-immigrant in nature, it supports immigrant intent (much like a K-1 does for a fiance). Intent to immigrate is not a reason for ineligibility (214(b)).

 

Actually, 214.2(h)(16)(i) explicitly says (emphasis in bold):

"The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. "

http://www.nafsa.org/_/file/_/amresource/8cfr2142h.htm#2142h16i

Edited May 10, 2017 by geowrian

[Allie D 39]

1 minute ago, geowrian said:

filing of a preference petition for an alien

Aha. Does this imply something like a successful K-1 petition?

[Allie D 39]

Is someone eligible to change status from K-1 to H-1B once inside the USA? I saw the following post on Visa Journey which suggests this is not possible, and that the candidate needs to go back to his home country and have an employer petition for H-1B afterwards.

 

Edit: Here are some lawyers saying that you cannot change from K-1 to any other visa category after you are in the USA. You can only adjust status.

Edited May 10, 2017 by Allie D

[geowrian 22,337]

3 minutes ago, Allie D said:

Aha. Does this imply something like a successful K-1 petition?

Good question...K-1 shouldn't be considered a preference petition AFAIK. I believe it's treated akin to an IR-1 (but obviously with some differences, including being non-immigrant). As for the OP's case, the permanent labor certification aspect is what permits the H-1B to be covered by that clause.

 

Just now, Allie D said:

Is someone eligible to change status from K-1 to H-1B once inside the USA? I saw the following post on Visa Journey which suggests this is not possible, and that the candidate needs to go back to his home country and have an employer petition for H-1B afterwards.

.That I do not know for sure. My assumption would be you need to apply for the visa abroad...the I-539 instructions (https://www.uscis.gov/system/files_force/files/form/i-539instr.pdf) do not mention H-1B so the default, I assume, would be that it cannot be done via that form.

[Dohan 133]

On 5/8/2017 at 0:33 AM, cyberfx1024 said:

Also what you don't know is that H1B visa holders are pretty much beholden to the company that got them visa, thus kinda like slaves for that company. Plus they are closed this year for any applications, and they closed within a few days of opening. What special skills do you have for a H1B visa? 

That is not correct anymore. H1B holders are allowed to switch to a different employer who would become their new sponsor for an H1B. This is called a transfer.