Legality of filing AOS on h1b arrival with pending CR-1

[gtrplayr 6]

Hi all, been lurking the forums since June 2023 when I submitted my i130 for my wife (I am USC). We've had some health changes come up that are making us think of ways to be together in the US faster than via consular processing which I would expect would finish in mid to late 2024. 

 

One pathway I think may work is to find an H1B job and come to the US. Upon arrival we then file the i485 and EAD/AP applications to adjust status.

 

I know pathways to enter the US like b1/b2 visa to adjust status are immigration fraud, but with a dual intent visa like the h1b, is there any concern with the above strategy? If the job doesn't work out after filing the 485, would the pending 485 serve as legal status to stay in the US (I believe so but want to confirm)? 

 

For context, wife has an existing valid h1b visa so she would not have to go through the lottery again, just find a new sponsor to petition her (knowing it's a tough market out there right now so it's unknown how long to find a sponsor)

 

Thanks y'all and mods please move this if not in the right section, I wasn't sure whether this belongs in the ir1/cr1 forum or here. 

[JeanneAdil 6,402]

The H-1B is “employer specific,” which means that if you change employers, the new employer must prepare an entirely new H-1B petition, which takes advanced planning and a process that could take several months 

 

she would have to go thru the process for a new employer 

[Boiler 44,986]

Definitely a way to go

[appleblossom 2,018]

28 minutes ago, JeanneAdil said:

The H-1B is “employer specific,” which means that if you change employers, the new employer must prepare an entirely new H-1B petition, which takes advanced planning and a process that could take several months 

 

she would have to go thru the process for a new employer 

 

H-1B's can be ported, and the employee can start working for the new employer as soon as the I-129 is filed which cuts down the wait time considerably. The other advantage of a transfer is that she wouldn't be subject to the cap/lottery. 

 

I agree with Boiler, definitely a good idea, might as well try and find a job anyway whilst waiting. 

Edited December 14, 2023 by appleblossom

[JeanneAdil 6,402]

• but she has left the US so does it still count?
• H-1B Employees Changing Employers (Porting). An H-1B employee who is changing H-1B employers may begin working for the new employer as soon as the employer files a Form I-129 petition on behalf of the employee, however, the employer must do this before the employee’s period of authorized stay expires. You must also complete a new Form I-9 for this newly hired employee. An H-1B employee’s unexpired Form I-94 issued for employment with the previous employer, along with their foreign passport, qualifies as a List A document. You should write “AC-21” and enter the date you submitted Form I-129 to USCIS in the Additional Information field in Section 2. See Section 7.7, Extensions of Stay for Other Nonimmigrant Categories.

[igoyougoduke 1,635]

7 hours ago, gtrplayr said:

Hi all, been lurking the forums since June 2023 when I submitted my i130 for my wife (I am USC). We've had some health changes come up that are making us think of ways to be together in the US faster than via consular processing which I would expect would finish in mid to late 2024. 

 

One pathway I think may work is to find an H1B job and come to the US. Upon arrival we then file the i485 and EAD/AP applications to adjust status.

 

I know pathways to enter the US like b1/b2 visa to adjust status are immigration fraud, but with a dual intent visa like the h1b, is there any concern with the above strategy? If the job doesn't work out after filing the 485, would the pending 485 serve as legal status to stay in the US (I believe so but want to confirm)? 

 

For context, wife has an existing valid h1b visa so she would not have to go through the lottery again, just find a new sponsor to petition her (knowing it's a tough market out there right now so it's unknown how long to find a sponsor)

 

Thanks y'all and mods please move this if not in the right section, I wasn't sure whether this belongs in the ir1/cr1 forum or here. 

Yes H1b is dual intent. As long as she has a job  with an employer you can enter on h1b and later adjust status when the law allows 

[gtrplayr 6]

8 hours ago, JeanneAdil said:

• but she has left the US so does it still count?
• H-1B Employees Changing Employers (Porting). An H-1B employee who is changing H-1B employers may begin working for the new employer as soon as the employer files a Form I-129 petition on behalf of the employee, however, the employer must do this before the employee’s period of authorized stay expires. You must also complete a new Form I-9 for this newly hired employee. An H-1B employee’s unexpired Form I-94 issued for employment with the previous employer, along with their foreign passport, qualifies as a List A document. You should write “AC-21” and enter the date you submitted Form I-129 to USCIS in the Additional Information field in Section 2. See Section 7.7, Extensions of Stay for Other Nonimmigrant Categories.

 

Correct, I believe porting is not an option in this case because she has already left the US, so the new employer would have to go through the petition process fully and have an approved i129 before she can enter the US. 

 

Thanks y'all for the quick responses! Sounds like this is a feasible option and we can file for AOS as soon as she arrives. I'd like to do that ASAP in case the new job doesn't work out so she can still stay in the US. 

 

 

[OldUser 6,170]

Green light for marriage based AOS any time. H1-B is a dual intent visa.

[nastra30 2,246]

H1B to AOS, Legal. Good luck.

On 12/14/2023 at 7:24 PM, gtrplayr said:

Thanks y'all for the quick responses! Sounds like this is a feasible option and we can file for AOS as soon as she arrives. I'd like to do that ASAP in case the new job doesn't work out so she can still stay in the US. 

H1B (dual intent) to AOS, Legal. Good luck.