Getting married while applying for a green card (NIW)

[miracleman 0]

Dear All,

Me and my girlfriend are planning to get married soon. I am in H1-B status and she is in the US on B1/B2 visa.

I have filed for U.S. permanent residency under National Interest Waiver. But my case has not been processed yet.

1) If we get married now, would I be able to include her into I-485 form as my spouse (once my case is approved)?

Should we expect any complications? (She entered the US as a visitor. Most likely, our marriage would be only several month long when it is time to file for I-485).

2) Alternatively, we could wait with filing for I-485 and apply for H4 dependent status first Would it work?

3) Would you advise to postpone the marriage until my residency is fully approved? (And then apply for her residency under F2 category?)

4) Would it be easier for her to return to her home country (Russia) and apply from there?

Thank you so much for your help!

[Harpa Timsah 13,258]

A few problems. She cannot use I-485 because 1. you are a resident yet. 2. Once you are, there is about a 2 year waiting period for her priority date to be current as the spouse of a PR. 3. If she tried to wait it out here, overstay is not forgiven and she would be banned from the country.

I am not sure if she became H4 if she could be added as a derivative to your petition. I don't think so, but someone else will know for sure.

Edited May 22, 2012 by Harpa Timsah

[grrrrreat 109]

A few problems. She cannot use I-485 because 1. you are a resident yet. 2. Once you are, there is about a 2 year waiting period for her priority date to be current as the spouse of a PR. 3. If she tried to wait it out here, overstay is not forgiven and she would be banned from the country.

I am not sure if she became H4 if she could be added as a derivative to your petition. I don't think so, but someone else will know for sure.

A couple notes: First, NIW immigrants receive employment based LPR status in the EB-2 category. According to USCIS, EB-2 immigrants can petition for derivative LPR status for their spouses and children in the E-21 and E-22 categories. I assume someone helped you file your NIW petition; if so you should investigate how to add your spouse as a derivative beneficiary to that petition after you're married.

Second note: H1-B visa holders can also get H4 derivative status for their dependents. What I don't know is if you can get H4 status based on a marriage that happened after someone receives H1-B status. You'll have to check on that. If you can get H4 status for your spouse, I would investigate whether you can file I-539 to change her status to H4. Then when you apply for AOS she can adjust as an E-21 as well.

I agree she can't wait out the process in the U.S. after B-2 status expires. If you can't change her status before the I-94 runs out, she may have to return home and wait to get a derivative visa.

Hopefully you won't have to go the family preference route, since those have a waiting list. Derivative status would be better.

Good luck!

Edited May 22, 2012 by grrrrreat

[grrrrreat 109]

She cannot use I-485 because 1. you are a resident yet.

A little quibble: if she is in lawful non-immigrant status, and is the derivative of an employment based petition, she should be able to adjust status as a derivative at the same time that the principal immigrant does.

[miracleman 0]

Thank you so much, Harpa and grrrrreat!

Let me add some details:

0) Obviously, under no circumstances she is going to get out of status.

1) Re: NIW. I am pretty sure it is possible to add a spouse to I-485 somehow if/after original I-140 petition gets approved.

However, what I am not at all sure is whether this is going to make complications to the overall process. We would be married only several month at that point. And we would get married after I-140 is filed. I am concerned about all possible RFEs and other interviews, etc. Does any one have experience in this situation?

2) Re: H4 dependent status. If we end up choosing this route this delays I-485 and the green card in the end.

Here I am concerned that she might get denied H4 (if applying from within the US) since she originally arrived as B1/B2 and would shortly attempt to adjust to H4.

On the other hand, if she goes back to Russia and applies for H4 visa, she still might get rejected. (Due to immigration intents.) Correct me if I am wrong here: it is only H1b that is dual-intent, not the H4. Any experience with these?

Thank you so much once again!

[grrrrreat 109]

Thank you so much, Harpa and grrrrreat!

Let me add some details:

0) Obviously, under no circumstances she is going to get out of status.

1) Re: NIW. I am pretty sure it is possible to add a spouse to I-485 somehow if/after original I-140 petition gets approved.

However, what I am not at all sure is whether this is going to make complications to the overall process. We would be married only several month at that point. And we would get married after I-140 is filed. I am concerned about all possible RFEs and other interviews, etc. Does any one have experience in this situation?

2) Re: H4 dependent status. If we end up choosing this route this delays I-485 and the green card in the end.

Here I am concerned that she might get denied H4 (if applying from within the US) since she originally arrived as B1/B2 and would shortly attempt to adjust to H4.

On the other hand, if she goes back to Russia and applies for H4 visa, she still might get rejected. (Due to immigration intents.) Correct me if I am wrong here: it is only H1b that is dual-intent, not the H4. Any experience with these?

Thank you so much once again!

1) I don't think the length of your marriage should hold up your I-140/I-485 process. You may have to submit evidence of a bona fide relationship similarly to I-130 petitioners, but plenty of people who've been married for just a few months are able to adjust status under an I-130. The bottom line is that if you wait until after you are an LPR and then file an I-130 for her, it will take much longer because you'll need to wait for the priority date to become current. Qualifying as a derivative is going to be much faster.

2) This is kind of an interesting question. B-2 is a nonimmigrant visa, but an H-4 can also be a non-immigrant visa, meaning switching from B-2 to H-4 doesn't necessarily imply that she had immigrant intent when she entered. In any case, if USCIS asks whether she had immigrant intent when she entered on B-2 she will have to tell the truth, and hopefully the truth is no. As far as H-4 being dual-intent, this USCIS memo suggests spouses of H1-Bs have dual intent status too. On page 6, it states that "Section 214(h) permits H-1 temporary workers in specialty occupations, L-1 intracompany managerial or executive transferees, and their spouses and children to maintain their nonimmigrant status while their adjustment applications are pending". It's a draft memo so you should look for a better source, but I think spouses of H1-Bs are dual-intent (but spouses of H-2s, H-3s, etc. that also have the H-4 classification may not be). http://www.tnvisabulletin.com/storage/USCIS%20Memo%20Admin%20Alt%20CIR%202010.pdf

Edited May 23, 2012 by grrrrreat