I'm H1b to Eb2; getting married to spouse j1 to AOS

[dpw13 0]

Hello everyone, I have a short question or two:

I'm on a h1b from October this year and my girlfriend is on a J visa and she will likely be on it for at least a few more months.

I plan to apply for an EB2 in 6 months or a year from now and its likely my girlfriend and I will marry before then.

Will she have issues with immigration intent because she will be in the US for a year or so on a J visa by the time she applies for a AOS with my application?

Also, I assume once she applies for the GC with me and attains the OAS, she can work anywhere in the US without a visa?

I appreciate any replies.

[Harpa Timsah 13,258]

Does EB2 allow for derivatives? If a LPR petitions for a spouse the wait is very long, a few years. Any overstay would make her ineligible for AOS.

Edited October 16, 2012 by Harpa Timsah

[no-to-rfes 0]

Does EB2 allow for derivatives? If a LPR petitions for a spouse the wait is very long, a few years. Any overstay would make her ineligible for AOS.

Hi,

I think it does

" Family of EB-2 Visa Holders

Your spouse and children under the age of 18 may be admitted to the United States in E-21 and E-22 immigrant status, respectively. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD). " (from USCIS)

So I guess your spouse can adjust status with you but you'll have to be careful to work around the J1 issue. (I believe marriage has to happen before your AOS is adjudicated, preferably before you apply for it).

Note that you need to be careful about the J1, as the "immigration intent" would likely create issues renewing the DS-2019:

1) She can not be adjust status if she is subject to the two year-home-residency requirement. (If not sure apply for an advisory opinion). If she's subject she needs to apply for a waiver (once you apply for a waiver you can not -or might have issues depending of IO- renew the DS-2019).

2) She might/likely have issues renewing her DS-2019 if she files for AOS.

So you would want to renew DS-2019 before filing for AOS - (and before filing for waiver if needed).

Once she AOS she can work anywhere (actually while processing her AOS she could get Employment authorization EAD).

But I think she must maintain legal status throughout, as overstaying would make her ineligible to AOS (as Harpa mentioned).(You mention she only has the J visa for a few months, so she'll probably have to extend it to have enough time to process everything).

So it seems you have to work out all the details but might be possible.

This might help: http://imminfo.com/Library/green_cards/AOS/marriage-during-aos.html

Btw, I don't have any experience on the EB2, so members who have applied for it, please correct me if wrong.

- ntr

Edited October 16, 2012 by no-to-rfes