Jump to content
Sign in to follow this  
saver411

Work Permit first and then K-1 Visa question

13 posts in this topic

Recommended Posts

Hi,

I'm planning to apply for fiance visa very soon but I have a question and maybe someone can shed some light.

My fiance is planning to come to USA with a job offer soon, well before she gets the K-1 visa and she will be legally working here. She currently do not have this job but we are hopeful (but no guarantee) that she will be able to get one. We are just trying to be together the soonest so we were thinking about taking two routes. Either coming here with a Job or through K-1 visa.

My question is this, if she comes here with a job offer and if we have the K-1 visa in process, can we just ignore it or will she have to go through the K-1 process as well? If she decides to go with the K-1 process while she continues to work, will she have to quit her job and give up her work permit when she gets the K-1 visa or will she be able to continue working with her pre-existing work permit? Or can we just abandon the K-1 visa process if she gets a job here and get married and file for adjustment of status or something like that to get her the green card?

Thank you so much for your guidance.

-Andre

Share this post


Link to post
Share on other sites

Hi,

I'm planning to apply for fiance visa very soon but I have a question and maybe someone can shed some light.

My fiance is planning to come to USA with a job offer soon, well before she gets the K-1 visa and she will be legally working here. She currently do not have this job but we are hopeful (but no guarantee) that she will be able to get one. We are just trying to be together the soonest so we were thinking about taking two routes. Either coming here with a Job or through K-1 visa.

My question is this, if she comes here with a job offer and if we have the K-1 visa in process, can we just ignore it or will she have to go through the K-1 process as well? If she decides to go with the K-1 process while she continues to work, will she have to quit her job and give up her work permit when she gets the K-1 visa or will she be able to continue working with her pre-existing work permit? Or can we just abandon the K-1 visa process if she gets a job here and get married and file for adjustment of status or something like that to get her the green card?

Thank you so much for your guidance.

-Andre

In most cases if a person arrives here for purposes other than to get marriedthey can get married and file for adjustment of status. One of the "tests" for this is IF they had the intention to get married when they arrived. Obviously, if you file an I-129f before she arrives for another reason she had the intention to get married and become a permanent resident.

If, for example, you file the I-129f now and she arrives with a work visa, she can stay in the US as long as the work visa allows, which will prbably be more than time it takes to process the K-1. She would then go back to the consulate in her country for an interview and return with the K-1 in her passport.

If you do not file the I-129 and just file for adjustment of status after she arrives for a work purpose, you run the risk of it being discovered you intended to avoid the legal process and her residency can be denied and she can be barred from future visas.

If she is untruthful about her intentions to get either visa she is risking denial of either or both.


VERMONT! I Reject Your Reality...and Substitute My Own!

Gary And Alla

Share this post


Link to post
Share on other sites

She would be getting H-1 Visa.

So let's say the senior is this, we apply for the K-1 Visa now, April 24th. Then on July she gets a job offer in USA, can she get the H-1 Visa and ignore the K-1 visa that's currently in process? Maybe send them a letter saying, we are no longer proceeding forward with the K-1 Visa?

Thanks

Share this post


Link to post
Share on other sites

She would be getting H-1 Visa.

So let's say the senior is this, we apply for the K-1 Visa now, April 24th. Then on July she gets a job offer in USA, can she get the H-1 Visa and ignore the K-1 visa that's currently in process? Maybe send them a letter saying, we are no longer proceeding forward with the K-1 Visa?

Thanks

No.

Be advised that filing for a K-1 now may make it difficult for her to get the H-1 visa. They may deny it based on her obvious intent to immigrate. She will also have announced that she intends to get married and adjust status which means she cannot just ignore the K-1 and adjust status from the H-1.

Bottom line? CHOOSE ONE and go with it. If you choose to file for a K-1 now, she may or may not get the H-1. If she does, then she will have to return for an interview for the K-1, but can stay here as long as the H-1 allows.

You cannot adjust status from an H-1 if it was your intent when entering the US to get married and adjust status.


VERMONT! I Reject Your Reality...and Substitute My Own!

Gary And Alla

Share this post


Link to post
Share on other sites

Thank you so much for clearing it up for me.

One more question, if we go with just the K-1 Visa, can my Fiance come and visit me during the process until she gets the K-1 visa, she has tourist visa now?

Yes. She can also apply for the H-1 visa. She should bring plenty of evidence she will return if she comes as a tourist, proof of employment, etc. Always be honest and answer directly.


VERMONT! I Reject Your Reality...and Substitute My Own!

Gary And Alla

Share this post


Link to post
Share on other sites

Hmm.. I'm a bit confused.

So just to be clear, from your last post, this is what I now understand.

If we apply for K-1 Visa now with the only intention of her moving here to marry me. And then, lets say in 2 months, she thought about getting a job here so she gets a job offer and they sponsor her for H-1 visa and she gets it. After that, while she is working, we continue the K-1 process and when its time for that, we go ahead and get the K-1 Visa and get married, then this is fine?

I thought if we go with K-1 Visa, she shouldn't get H-1 visa if she gets a job offer before the K-1 visa process completes.

Share this post


Link to post
Share on other sites

I am not that familiar with either H1 or K1 visas - but isn't the H1 a dual-intent visa? And if so, wouldn't that make the whole issue of non-immigrant intent a..well, non-issue? Meaning that they could go for the K1, and if she gets a job offer from an employer who would be willing to sponsor an H1 for her, she could withdraw the K1 and enter with the H1.

I might also be wrong about this, so don't take my word alone for it. But my understanding was that H1 is a dual-intent visa, and thus the previous K1 application would not necessarily be an obstacle for getting the H1.


Adjustment of Status from F-1 to Legal Permanent Resident

02/11/2011 Married at Manhattan City Hall

03/03/2011 - Day 0 - AOS -package mailed to Chicago Lockbox

03/04/2011 - Day 1 - AOS -package signed for at USCIS

03/09/2011 - Day 6 - E-mail notification received for all petitions

03/10/2011 - Day 7 - Checks cashed

03/11/2011 - Day 8 - NOA 1 received for all 4 forms

03/21/2011 - Day 18 - Biometrics letter received, biometrics scheduled for 04/14/2011

03/31/2011 - Day 28 - Successful walk-in biometrics done

05/12/2011 - Day 70 - EAD Arrived, issued on 05/02

06/14/2011 - Day 103 - E-mail notice: Interview letter mailed, interview scheduled for July 20th

07/20/2011 - Day 139 - Interview at Federal Plaza USCIS location

07/22/2011 - Day 141 - E-mail approval notice received (Card production)

07/27/2011 - Day 146 - 2nd Card Production Email received

07/28/2011 - Day 147 - Post-Decision Activity Email from USCIS

08/04/2011 - Day 154 - Husband returns home from abroad; Welcome Letter and GC have arrived in the mail

("Resident since" date on the GC is 07/20/2011

Share this post


Link to post
Share on other sites

Hmm.. I'm a bit confused.

So just to be clear, from your last post, this is what I now understand.

If we apply for K-1 Visa now with the only intention of her moving here to marry me. And then, lets say in 2 months, she thought about getting a job here so she gets a job offer and they sponsor her for H-1 visa and she gets it. After that, while she is working, we continue the K-1 process and when its time for that, we go ahead and get the K-1 Visa and get married, then this is fine?

I thought if we go with K-1 Visa, she shouldn't get H-1 visa if she gets a job offer before the K-1 visa process completes.

One has nothing to do with the other. There is no merging of visas.

You file for a K-1 and follow the procedures for a K-1 which is the proper visa for someone that intends to get married and adjust status. Got that so far?

Later she applies for an H-1 because that is the proper visa to come for a temprary work position but it does not include filing for adjustment of status. Because she has been petitioned for a K-1 she MAY be denied the H-1 as she obviously intends to immigrate and they may think she will immigrate illegally with the H-1. IF she is approved for the H-1 then she comes here and works for as long as the H-1 allows. Following along still?

THEN when the K-1, still in process, is approved she will return to her country for an interview, maybe just for a few days, then come to the US with her K-1 and stay forever. IF her H-1 expires before the K-1 is approved, then she will have to return to her country and wait for it to be processed. Still with me?

If you have a foreign fiancee and want to get married and live together in the USA, then file an I-129f.

If she wants to work temporarily in the US, then file an H-1

if she wants to do both, then file for both.

K-1 is not a work visa, H-1 is not a fiancee visa.


VERMONT! I Reject Your Reality...and Substitute My Own!

Gary And Alla

Share this post


Link to post
Share on other sites

You are right Little_My

Here it is from the WikiPedia

"Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries to obtain their green cards. Since the duration of the H-1B visa hasn't changed, this has meant a lot more H-1B visa holders have to renew their visas in one-year or three-year increments to continue to be in legal status while their green card application is in process."

So the plan is

1) First apply for K-1 Visa.

2) If she gets a job here that would sponsor her for a H-1 visa before she gets K-1, then she comes here with H-1.

3) Either withdraw K-1 or proceed with it (that's the question)

4) Get married and apply for adjustment of status to get the Green Card.

Do you think I should check with a lawyer on this?

Yup, got it Gary and Alla. It is very clear to me now :-)

This forum is great. Thank you guys!

Share this post


Link to post
Share on other sites

You are right Little_My

Here it is from the WikiPedia

"Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself. However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries to obtain their green cards. Since the duration of the H-1B visa hasn't changed, this has meant a lot more H-1B visa holders have to renew their visas in one-year or three-year increments to continue to be in legal status while their green card application is in process."

So the plan is

1) First apply for K-1 Visa.

2) If she gets a job here that would sponsor her for a H-1 visa before she gets K-1, then she comes here with H-1.

3) Either withdraw K-1 or proceed with it (that's the question)

4) Get married and apply for adjustment of status to get the Green Card.

Do you think I should check with a lawyer on this?

Yup, got it Gary and Alla. It is very clear to me now :-)

This forum is great. Thank you guys!

While it is true you can adjust statuis from an H-1 (or even from a tourist visa) if your intent is to get married and adjust status, you need the K-1.

Your plan, though, sounds OK.


VERMONT! I Reject Your Reality...and Substitute My Own!

Gary And Alla

Share this post


Link to post
Share on other sites
 
Didn't find the answer you were looking for? Ask our VJ Immigration Lawyers.

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  
- Back to Top -


Important Disclaimer: Please read carefully the Visajourney.com Terms of Service. If you do not agree to the Terms of Service you should not access or view any page (including this page) on VisaJourney.com. Answers and comments provided on Visajourney.com Forums are general information, and are not intended to substitute for informed professional medical, psychiatric, psychological, tax, legal, investment, accounting, or other professional advice. Visajourney.com does not endorse, and expressly disclaims liability for any product, manufacturer, distributor, service or service provider mentioned or any opinion expressed in answers or comments. VisaJourney.com does not condone immigration fraud in any way, shape or manner. VisaJourney.com recommends that if any member or user knows directly of someone involved in fraudulent or illegal activity, that they report such activity directly to the Department of Homeland Security, Immigration and Customs Enforcement. You can contact ICE via email at Immigration.Reply@dhs.gov or you can telephone ICE at 1-866-347-2423. All reported threads/posts containing reference to immigration fraud or illegal activities will be removed from this board. If you feel that you have found inappropriate content, please let us know by contacting us here with a url link to that content. Thank you.
×