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pbj123

H1-B overstay, authorized to work before marriage?

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Hello,

I am a UK citizen that has been employed under a H1-B visa which is set to expire December 2014. In the last 8 months I have fallen in love with an American, and we are wondering what our options are.

From the forum we have read that it is possible to overstay my H1-B & later get married and the over-staying is forgiven. Is that true, because we have also seen some mention of 180 day periods and penalties if over-staying that but unsure if it applies to this case?

Also – my current work will end when my H1-B expires and therefore I won’t be working for the same employer, but can I continue to legally work (perhaps as a contractor) and pay taxes in the U.S.? Are there “authorized” and “unauthorized” types of work? We have seen conflicting information out there, some people indicate work isn’t authorized but other entries say they have worked and overstayed visas for 3+ years and it gets waived once marriage paperwork is submitted.

I already know that I wouldn't be allowed to travel when overstaying before getting married, however my work will inevitably require me to travel abroad. If and when we do get married, how long would it take from submitting the paperwork to getting authorization to travel? Should I apply for Advance Parole Travel Document?

Thanks in advance for any help, advice or links to further information.

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Overstaying in any way can be grounds of penalty and can mess up your chances of being granted re-entrance to the country. The best way to things would be to return to your country and have her file a I129F. The US government is very strict and you don't want to mess up your chances of being re admitted for permanent stay in the near future.

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I believe it's true that periods of overstay -- and even a history of unauthorized employment -- would generally not be an impediment to a successful adjustment of status on the basis of an immediate family relationship with a US citizen, but bear in mind that during any period of overstay you would be subject to removal (perhaps a low risk, but the consequences would be serious), and you would be accumulating time towards bans on re-entry that would kick in if you did leave the States before adjusting status. (That's where the 180-day-overstay threshold is significant; overstay by that length of time and you are banned from re-entering the US, if you leave, for 3 years. If you overstay by a year or more, it becomes a 10 year ban.)

And no, there is no "authorized" kind of work that an out-of-status overstayer can do.

When and if you do apply for adjustment of status, you can apply for employment authorization and advance parole, which would generally be issued (and documented in the form of a single card) within about 90 days. In the past, having an advance parole document did not cancel the effect of bans triggered by overstays, so even if you had an advance parole document in hand, in effect you couldn't use it if you had overstayed by more than 180 days, as a ban would still apply. But I believe there was a Board of Immigration Appeals decision a couple of years ago that held that the holder of an advance parole document should, in fact, be admitted in spite of any ban. If I were in this situation, though, I would check this out very thoroughly and tread very carefully.

I think the advice you would get from most people of these boards is not to take the possible consequences of overstaying lightly and not to think that you will simply be able to carry on with your professional life while out of status. If, understandably, you're not ready to take the plunge and marry and begin adjusting status now (and I certainly wouldn't advocate letting immigration matters dictate the pace of these things!), then it's worth thinking creatively about how you might stay on the right side of immigration law through all of this. (Finding another H1-B employer, if at all possible? Returning for an extended visit on the Visa Waiver Program after your H1-B employment ends?) Good luck ...

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