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H1B marrying greencard holder

Crystal City, MO |

I'm currently a H1b holder and my finacee is greencard holder. We will have the same year (201x) wherein she can apply for citizenship and ending year of my contract as h1b.

We are seriously planning to get married we're just unsure what would be the best time.
I guess my main question is:

a.can we get married now and not file any AOS just maintain my current visa til' my finacee gets her citizenship then apply for AOS? or

b.get married after she got her us citizenship then file an AOS for me. before my contract expires.

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Attorney answers 4

Posted

You are confusing adjustment of status (AOS) which results in lawful permanent residence (a "green card") and citizenship. You cannot apply for citizenship until a certain number of years after you have become a lawful permanent resident. Based on the facts you provided there is a lot of other information that would have to be provided to properly assess your situation. I suggest you have a consultation with an experienced immigration attorney to determine how marriage would affect you and your fiances status and any pending cases.

Posted

It is fine to get married either before or after she becomes a U.S. citizen and this will not affect her ability to file for your permanent residency. As you are on an H-1B this permits dual intent and even though she is a PR now it would not jeopardize your H-1B. It is most important that you maintain your status until you do become a permanent resident. If you do marry sooner she can file the I-130 immediately to get you a place in line in the FB-2a queue (or wiat until she is a USC and then file I-130/I-485 etc as a concurrent filng). Fb-2a is currently on 2009 cases for most countires but as recently as a year ago was almost current so it wouldn't hurt and then this portion of your application process will be out of the way.


Lynne R. Feldman, Attorney at Law
Concentrating in Immigration and Nationality Law
2221 Camino Del Rio South, Suite 201
San Diego, CA 92108
phone: (619) 299-9600, facsimile: (619) 923-3277
email: lynne@feldmanfeldman.com
website: www.immigrateme.com

Formerly Adjunct Professor -- Immigration law
University of Illinois College of Law

Asker

Posted

Let's say we want to married when my partner becomes US citizen.. My partner can apply for citizenship in february 2012, and my contract expires in august 2012. How long would it take for her to get her US citizenship? if ever she got it, how long would it take for me to get my greencard? is 6 months enough to accomplish everything?

Asker

Posted

You mentioned: "If you do marry sooner she can file the I-130 immediately to get you a place in line in the FB-2a queue (or wiat until she is a USC and then file I-130/I-485 etc as a concurrent filng)." Can we do this at the same time? if we get married now, can we file I-130? While waiting for this (let's say 4-5 years), my partner would probably get her citizenship between those times. Can she then file an AOS for me even if i have a pending I-130 application?

Lynne Rogers Feldman

Lynne Rogers Feldman

Posted

yes. Once eligible to file I-485 either because FB-22a date is current or your partner becomes a USC then you can file the AOS packet with I-130 receipt.

Lynne Rogers Feldman

Lynne Rogers Feldman

Posted

more like 8 months with best case processing -- 4 for citizenship and 3-4 for AOS interview but once AOS on file it is not mandatory to renew the H-1B; may want to wait for work card though before letting H go to make sure you have no gap in the right to work.

Posted

You can get married now, but you cannot file for AOS now because your priority date would not be current. If you want, your spouse can file an I-130 for you after the wedding. That will have no effect on your H-1B, and you will have to maintian your H-1B status if you want to remain in the U.S. If your H-1B expires before your priority date becomes current and you file an I-485, you would have to leave the U.S.

You could wait to get married until after she becomes a USC, but why? If you are married earlier you can spend the next years gathering supporting evidence of your living together and joint finances, etc. which will make it easier for the I-130 to be approved if you want to wait to file that petition. Also, if the marriage is less than 2 years old when you get the green card (which would be the case if you proceed with Plan b), then you will only get conditional status and have to file another petition (and incur those expenses) to remove conditoinal status. If you marry sooner, then there is a better chance that your marriage will be more than 2 years old when you get your green card, and then it will not be conditional but rather a full permanent resident status.

Asker

Posted

thanks for your reply. Even if we got married now, we can't have 2 years of marriage. so probably il be on conditional status when my partner gets US citizenship and apply me for green card. By the way, if we get married now, wile she's still in GC status, you said my partner can apply I-130, but this could take 4-5 years right? but as per Lynne Rogers Feldman's response above, they are processing almost current?

Ralf D. Wiedemann

Ralf D. Wiedemann

Posted

Depending on when your wife can apply for naturalization, you may be married for 2 years by the time you get your green card. Remember that it will take 4-5 months after filing until she becomes a USC, and then it may be another 4-5 months until you have your I-485 interview. The age of your marriage on the date your I-485 is approved is the point of measure. Ms. Feldman's response was that F2A I-130s were almost current last year. But they're not close to current right now. If you are married and your wife files the I-130 in the F2A category, this I-130 will automatically convert to an Immediate Relative filing the day that she becomes a USC.

Posted

You cannot file for adjustment if your wife is only a permanent resident for lack of an available immigrant visa number. The visa number will only become immediately available once she becomes a citizen. However, you can get married at any point in time even before she applies for citizenship. This will actually start the clock for conditional resident purposes and may allow you the be granted permanent resident status instead of only conditional resident status depending on the timing of events.