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  • General information and notes about adjustment from H1B, F-1, J-1, and other visa types




       H1B and other work visa notes: There is an USCIS exemption for H1 and L1 visa holders. The way this works is
    this: even though you apply for adjustment of status, you keep your H-1 or L-1 status, UNLESS you USE a
    marriage-based EAD card. What this means in real terms is that IF you do NOT use a marriage-based EAD
    you are still H1 or L1 and CAN travel outside the US withOUT having advance parole. Of course, you would still
    have to work for the H1 or L1 employer in this situation.

    If you want/need to change employers, you can apply for the marriage-based EAD card when you file
    adjustment of status (or any time after that), HOWEVER once you USE the marriage-based EAD card, your
    status has effectively been changed to "pending adjustment" based on the marriage, and you WILL need
    advance parole to travel outside/back into the U.S. The KEY POINT is that once you USE the marriage-based EAD, you
    have changed your status from H-1 or L-1 at that time, and your new status is "pending adjustment based on
    marriage to a US citizen".

       General notes about adjusting from H1B, F-1, J-1, or another type of visa: Entering the US on another
    type of visa, such as student (F-1) or H1B, followed quickly by marriage to a US citizen, and then followed
    quickly by an application for adjustment of status might be construed by the USCIS to be visa fraud. The
    reason for this is that you applied for the original visa, and then after entry into the US quickly applied for
    adjustment of status, which makes the real purpose for your original visa request suspect. Bear in mind, the
    onus to disprove an accusation of fraud from the USCIS is on the person petitioning for adjustment of
    status. For this reason, I do not recommend applying for adjustment of status very quickly after you enter the
    US on one of these other visa types (although filing immediately is still legal if you had no intent on marrying
    and adjusting status both when you applied for your original visa and when you subsequently entered the US at the Port
    of Entry). There is no time limitation on when you must apply for adjustment of status after marriage to a US
    citizen...you could literally stay in the US for years before doing so, and as long as you maintained your status on the
    original visa, it would still be fine. While applying for adjustment of status very quickly might lead to a fraud accusation
    from the USCIS , the marriage itself is not an issue--no one will try to prosecute you in any way for marrying a US
    citizen, even if it is not very long after you enter the US. The thing to remember is that you do not want to apply for
    adjustment of status until a reasonable amount of time has passed after your entry. Shusterman recommends waiting
    at least 60 days after entry before changing status. You may want to consult an attorney if you have further questions
    regarding the timing issue for adjustment of status.

       General information regarding J-1 visa: Some J-type visas have a 2-year home residency requirement (2-yr
    HRR). Anyone who is considering marriage on a J-visa needs to confirm whether they are subject to the HRR.
    If the J-1 visa holder IS subject to the 2-yr HRR, he/she needs to obtain a waiver prior to marriage.

    THIS URL lists the 3 bases for J-1 holders being subject to the two-year HRR requirement, and the 4 methods
    of getting a waiver. Actually, there is a 5th method for physicians, the "Conrad State 20" method based on job
    commitments in areas in which there is a shortage of health care professionals. The government-funding base
    for the 2-year obligation could apply to a citizen of any country. The skills-list base for the 2-year obligation only
    applies to citizens or residents of certain countries. There is a link to the skills list on the State Department
    website. The graduate medical education base for the 2-year obligation could apply to a citizen of any country.

    Marriage to a U.S. citizen is not relevant to any of the 4 methods of getting a waiver, except perhaps
    exceptional hardship. Exceptional hardship has to be really extreme, not just a lack of employment
    opportunities, or problems in adjusting, for the U.S. citizen spouse, It is recommended that one hire an attorney
    in order to obtain a waiver.

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