Spouse H4 Visa Apply while in USA

[k4shz 0]

Hi Team,

 

I'm on an H1B visa (initially came on F1 -> H1B since 5+ years). I have my i140 approved. and recently got married to someone who is currently in the USA on tourist visa (B2) from India. I made sure not to get married before her 90 day period. We actually went above 120 days for safety reasons and then got the court marriage done.

 

The company's Legal Team is saying --

 

Basically, 9 FAM 302.9 explains that if an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application, the immigration officer may presume that the applicant made a willful misrepresentation to a consular officer. If someone engages in conduct inconsistent with their status after 90 days in the U.S., that does not mean that an immigration officer cannot still find that the applicant made a willful misrepresentation to an immigration officer based on the facts. It just means there is no automatic presumption of misrepresentation. In other words, there is still risk.

A finding of a misrepresentation could lead to your spouse being inadmissible for a green card in the future, or lead to an immigration bar to the U.S.

 

Just looking for experienced folks here to guide / advice and share any information they can on this as I'm evaluating whether to apply from the USA or ask her to go back to India then apply from there?

 

 

[Boiler 45,770]

H4 is non immigrant

 

To adjust you would deal with USCIS not the Consulate.

[k4shz 0]

Yeah my question is

- is there too much risk applying for COS (B2 to H4) while she’s in the USA? 
- or to get a consulate appointment, fill the DS160 and do this via foreign consulate?

[Boiler 45,770]

Obviously a CoS will not get you a visa.

[k4shz 0]

COS will let her be in the USA and once H4 is approved. She can travel back and get her visa stamped. 
thats besides the point!

 

My question is there some risk if I apply for her COS from the USA itself? 

[appleblossom 2,816]

15 hours ago, k4shz said:

Hi Team,

 

I'm on an H1B visa (initially came on F1 -> H1B since 5+ years). I have my i140 approved. and recently got married to someone who is currently in the USA on tourist visa (B2) from India. I made sure not to get married before her 90 day period. We actually went above 120 days for safety reasons and then got the court marriage done.

 

The company's Legal Team is saying --

 

Basically, 9 FAM 302.9 explains that if an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application, the immigration officer may presume that the applicant made a willful misrepresentation to a consular officer. If someone engages in conduct inconsistent with their status after 90 days in the U.S., that does not mean that an immigration officer cannot still find that the applicant made a willful misrepresentation to an immigration officer based on the facts. It just means there is no automatic presumption of misrepresentation. In other words, there is still risk.

A finding of a misrepresentation could lead to your spouse being inadmissible for a green card in the future, or lead to an immigration bar to the U.S.

 

Just looking for experienced folks here to guide / advice and share any information they can on this as I'm evaluating whether to apply from the USA or ask her to go back to India then apply from there?

 

 

 

If that's what your immigration lawyers are saying, then I'd stick with that - not worth risking ignoring them IMO. So if the attorneys suggest she goes home before her period of extended stay expires, and applies via the consulate, then I'd take their advice. 

[Boiler 45,770]

7 hours ago, k4shz said:

COS will let her be in the USA and once H4 is approved. She can travel back and get her visa stamped. 
thats besides the point!

 

My question is there some risk if I apply for her COS from the USA itself? 

If she is going to travel back and apply for H4 Visa I see no point in changing status.

 

Obviously I do not know all your details but would say that obtained a visa is usually more of an issue than changing status.