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Chani32

H1B to Green card

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If we start the green card process from Canada, but then receive an H1B visa, what happens to the I-130?

OR if he comes in on an H1-b, but then file an adjustment of status based on spousal support, how long will it take to get a green card?

What is the best way to do this?

thanks!

Edited by Chani32

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Nothing will happen to I-130 - H-1B is temporary work visa, does not give you permanent residence. Adjustment of Status from H-1B will take 2-6 months - as in any other case (similarly to adjustment from tourist visa for example).

Only issue here (but unlikely) is potential denial of H-1B with pending I-130.

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H1B is a dual intent visa, so having a I-130 will be fine. However, I find it hard to believe that a company would want to invest $5000 in a person to get them an H1B visa when the person has a spousal visa in the works, and will be in the US an able to work in less than a year. But, if they do want to do that, more power to you.


AOS for my husband
8/17/10: INTERVIEW DAY (day 123) APPROVED!!

ROC:
5/23/12: Sent out package
2/06/13: APPROVED!

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like ^ said, h1b should be unaffected because it is dual intent.


2006 - Entered US on F-1
2009 - COS to H-1
2011 - Married USC

Conditional GC Process:
04/2012 - Concurrent I-130 petition / I-485 AOS / I-765 EAD / I-131 AP sent
35 days to biometrics, 73 days to EAD/AP combo card, 85 days to interview, 96 days to Conditional Green Card

04/2014 - Eligible for ROC

06/2014 - I-751 package filing joint with spouse sent

5 days to extension,37 days to biometrics, 172 days to CSC transfer, 247 days to Green Card

04/2015 - Eligible for Citizenship

09/2015 - N-400 package filing on basis of USC spouse sent

29 days to biometrics, 105 days to interview, 147 days to oath and US citizenship

~ 9 years and 6 months from first entry to US citizenship

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If we start the green card process from Canada, but then receive an H1B visa, what happens to the I-130?

OR if he comes in on an H1-b, but then file an adjustment of status based on spousal support, how long will it take to get a green card?

What is the best way to do this?

thanks!

If you are sure he is going to get an H1-B soon, I'd recommend holding the process until he is in the U.S. After he enters, you can file simultaneously the I-130 and I-485 to adjust his status to LPR (Green Card). Before LPR status is approved, he can keep working in the H1-B job or he can file I-765 to get an employment authorization document if he wants to switch jobs. He can also travel on the H1-B as long as he continues to be in H1-B status, or he can file I-131 for an advance parole document if he wants to be able to travel out of the U.S. after he gives up the H1-B.

If you aren't sure he's getting an H1-B soon, you can go ahead and file the I-130. If he does later get an H1-B before the IR-1 is approved, you can file the I-485 to adjust his status after he enters on the H1-B (based on your pending or approved I-130). This is a little more complicated to do, so I'd recommend going the simultaneous I-130/I-485 if you can.

If he can't get an H1-B, you will wait for the I-130 to be approved and then go through the process of applying for the IR-1 visa like everyone else.

You are lucky because an H1-B visa is a "dual-intent visa", which means he can use it even if he intends to stay in the U.S. permanently. This makes it different from other non-immigrant visas, which are illegal to enter on if you have the intent to stay in the U.S.

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H1B is a dual intent visa, so having a I-130 will be fine. However, I find it hard to believe that a company would want to invest $5000 in a person to get them an H1B visa when the person has a spousal visa in the works, and will be in the US an able to work in less than a year. But, if they do want to do that, more power to you.

I agree the company would probably prefer you to enter on a spousal visa than pay for an H1-B. Do H1-B employers typically require employees to sign employment contracts to make sure that they get their money's worth or do they just rely on the fact that most H1-B entrants have to keep working to maintain H1-B status?

In any case, it would definitely be wrong of the employer to cancel the job offer because the employee has a U.S. citizen spouse, but it does seem reasonable for them to encourage the employee to go the IR-1 route, and maybe even pay for the IR-1 fees.

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I agree the company would probably prefer you to enter on a spousal visa than pay for an H1-B. Do H1-B employers typically require employees to sign employment contracts to make sure that they get their money's worth or do they just rely on the fact that most H1-B entrants have to keep working to maintain H1-B status?

In any case, it would definitely be wrong of the employer to cancel the job offer because the employee has a U.S. citizen spouse, but it does seem reasonable for them to encourage the employee to go the IR-1 route, and maybe even pay for the IR-1 fees.

I don't know if employers can force employees to sign contracts. Some states are "right to work states" which means the right to quit and the right to fire. I think usually they know the person could not be there without the visa, so that is good enough insurance, but in this case, I don't see why an employer would be willing to take the risk and spend the money on someone with another process in the works. Paying for IR-1 fees seems like it might be a good compromise.


AOS for my husband
8/17/10: INTERVIEW DAY (day 123) APPROVED!!

ROC:
5/23/12: Sent out package
2/06/13: APPROVED!

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I don't know if employers can force employees to sign contracts. Some states are "right to work states" which means the right to quit and the right to fire. I think usually they know the person could not be there without the visa, so that is good enough insurance, but in this case, I don't see why an employer would be willing to take the risk and spend the money on someone with another process in the works. Paying for IR-1 fees seems like it might be a good compromise.

Actually "right to work states" means the right to work without being required to join a union. Employees and employers can form employment contracts in every state. No court can force any employee to work if they don't want to (because of the amendment banning slavery), but they could make the employee reimburse the employer for any expenses they had.

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like ^ said, h1b should be unaffected because it is dual intent.

Hey man, I was just looking at your timelines. I'm just curious - did you receive the interview letter BEFORE the EAD?

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Hey man, I was just looking at your timelines. I'm just curious - did you receive the interview letter BEFORE the EAD?

yes actually. infact my ead case doesnt have any status beyond the initial receipt.


2006 - Entered US on F-1
2009 - COS to H-1
2011 - Married USC

Conditional GC Process:
04/2012 - Concurrent I-130 petition / I-485 AOS / I-765 EAD / I-131 AP sent
35 days to biometrics, 73 days to EAD/AP combo card, 85 days to interview, 96 days to Conditional Green Card

04/2014 - Eligible for ROC

06/2014 - I-751 package filing joint with spouse sent

5 days to extension,37 days to biometrics, 172 days to CSC transfer, 247 days to Green Card

04/2015 - Eligible for Citizenship

09/2015 - N-400 package filing on basis of USC spouse sent

29 days to biometrics, 105 days to interview, 147 days to oath and US citizenship

~ 9 years and 6 months from first entry to US citizenship

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yes actually. infact my ead case doesnt have any status beyond the initial receipt.

Your interview letter came really really fast after you filed, so the national benefits center just hasn't had the chance to process your EAD. You might not get it at all if you're approved at the interview.

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