Change of status for H1B that married US citizen.

[chiquitabanana 0]

My now husband was in H1B.  We were already in a relationship for the last 5 years and got engaged in January 2020. Then in May he was laid off because the covid situation, and we decided to get married in June, and he has been looking for a job in the 60 day grace period that ends in some days.

 

His H1B was originally to expire in June 2020, but the employer had reapplied a little bit before the lay off and he has received his new extension good until 2023 some days after the lay off.(I believe it is called i 797) He hired some lawyers that prepared the forms for his change of status as a spouse of a US Citizen, but now that we are reviewing the documents we have found a bunch of different errors.

 

They wrote in the i 485 that he is a H1B overstayer, and  then they answer to 17. "have you EVER violated the terms or conditions of your nonimmigrant status?"  as a YES.

 

We still need to ask the lawyers why they set that answer as a YES, but it confuses me because we got married when his previous extension H1B expiring in June 2020 was still valid  (actually with the latest extension it was technical valid until 2023).  I am afraid that it will be an immediate rejection.

 

 

 

Edited July 18, 2020 by chiquitabanana

[Ryan H 3,812]

Moved from IR-1/CR-1 Process & Procedures to Adjustment of Status from Work, Student, & Tourist Visas forum.

[HRQX 4,145]

4 hours ago, chiquitabanana said:

I am afraid that it will be an immediate rejection.

Shouldn't be an issue since those adjustment bars don't apply to Immediate Relatives of USC; thus you can fix it at the I-485 interview: https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-8

B. Immediate Relatives

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21. ^[2] 

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if: 

• The applicant is now employed or has ever been employed in the United States without authorization; 

• The applicant is not in lawful immigration status on the date he or she files the adjustment application; 

• The applicant has ever failed to continuously maintain a lawful status since entry into the United States; 

• The applicant was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and is not a Canadian citizen; 

• The applicant was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; or 

• The applicant has ever violated the terms of his or her nonimmigrant status.

Edited July 19, 2020 by HRQX

[chiquitabanana 0]

Thank you for your answer.  I still have the question:  if he was married before the the i-94 expired, does he need to answer yes to " 17. have you EVER violated the terms or conditions of your nonimmigrant status?"  He never violated his H1B visa before we got married, and I don't know if the intention for that question is the i-94 expiring.

[HRQX 4,145]

14 minutes ago, chiquitabanana said:

I still have the question:  if he was married before the the i-94 expired, does he need to answer yes to " 17. have you EVER violated the terms or conditions of your nonimmigrant status?"  He never violated his H1B visa before we got married, and I don't know if the intention for that question is the i-94 expiring.

The US does not require a particular visa or legal status (or any status at all) to marry. Thus, the correct answer is "No."

[chiquitabanana 0]

Thank you very much for your explanation.

[wagecuck3 31]

On 7/18/2020 at 6:31 PM, chiquitabanana said:

My now husband was in H1B.  We were already in a relationship for the last 5 years and got engaged in January 2020. Then in May he was laid off because the covid situation, and we decided to get married in June, and he has been looking for a job in the 60 day grace period that ends in some days.

Your husband will cease to maintain status once the grace period expires, unless he finds a new employer to file an H-1B petition for him before the end of the grace period.

 

So basically, if he files the I-485 during the grace period, he can answer no. If he files after the grace period, and has no new job then, he has to answer yes. But because it's an immediate relative filing, he can still get approved regardless of whether he violated status.