From: Sashti Srinivasan, Founder

Ads4matri.com

Questions from Parents on Visa Issues and Our
Answers (updated October 1, 2016)

   Dear Parents of Brides and Grooms Living the World Over:

Lot of times I see H1B visa holders seeking matrimony to Permanent Residents (Green Card Holders) in the U.S. This weeks newsletter seeks to clarify how limiting matrimony to Permanent Residents could be by H1B visa holders in the U.S., particularly if their H1Bs are expiring soon.

Last week, I got a spate calls on some very important questions re: US H1B visa issues and Permanent Residents (Green Card Holders) as to how they would affect the matrimony of their wards living in the U.S.A. These Parents want to celebrate the betrothal of their wards and are anxious to make sure that their actions are correct. I will paraphrase their questions below and provide pointed answers to their questions:

 HIB-GC

 1. Question: Our daughter is on a straight H1B visa, in the U.S., valid for another 2 years and wants to marry a boy in the U.S. whose Petition for a Green Card has been sponsored by his employer - (meaning he is on a H1B visa, transitioning to Green Card, H1B-GC) - can she marry this boy who is U.S.A. on a H1B-GC visa status and continue to work there and get her Green Card?!

Answer: By all means, she can marry the Boy on H1B visa (whose Petition has been filed for a Green Card) ~ in this case, the boy has to include her (his spouse) after matrimony, into his Filing (I-140) for Green Card, as his spouse and both of them would get their green cards at the same time, based on effective the date of filing of the Green Card application. The girl would get approval of her H1B Status by virtue of her matrimony to him and she can continue to work legally in the U.S. And they can live happily ever after until they get their green cards in their hands! However long it might take! No pressure to leave the shores of the United States. If children are born to them, in the mean time, before they get their Green Cards, the children are eligible to apply for U.S. citizenship.

 2. Question: "I have a daughter in India ~ can she marry a boy in U.S., on H1B visa whose Petition for a Green Card has been sponsored by his employer, (meaning, he is transitioning from H1B-GC status) and can our daughter come to the United States and seek gainful employment in the U. S. (and "not sit at home, on the bench"?! when she comes to the U.S.)?" 

Answer: Yes, by all means she can do so; (she will probably come to the U.S. from India on a H4 Status) after matrimony; once in the United States she can seek to convert her status from H4 into H1B and seek gainful employment in the U.S., and she can work and live in the U.S., until both of them (she and her husband) get their Green Cards, eventually, however long it might take!

In amplification of my answers to the above Questions, please read the following notification issued by USCIS on February 24, 2015 in this regard:

 February 24, 2015 - U.S. Citizenship and Immigration Services (USCIS) announced today that effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B non-immigrants who are seeking employment-based Lawful Permanent Resident (LPR) status. The DHS has since amended the regulations to allow these H-4 dependent spouses to accept employment in the United States and to work legally in the U.S. with an Employment Authorization Document (EAD) Status.

 Eligible individuals include certain H-4 dependent spouses of H-1B non-immigrants who:

 (1) are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker with an H1B transitioning into a GC, of either spouse;

or

(2) those who have been granted H-1B status under sections 106(a) and (b)

of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B non-immigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status, when their two (2) 3-year H1B status has ended, transitioning from H1B~GC status.

 Under the above rules, eligible H-4 dependent spouses must file Form I-765, Application seeking Employment Authorization, with supporting evidence (meaning employment offer and other pertinent documents) and the required $380 fee in order to obtain employment authorization from USCIS and receive a Form I-766, Employment Authorization Document (EAD). USCIS began accepting applications beginning May 26, 2015 for H4 conversions into H1B of H1B-GC beneficiaries, as described in foregoing rules. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD from USCIS, ONLY THEN, he or she may begin working in the United States, NOT until then!

 Note: Spouses of those who are on a Straight H1B status (meaning those who are NOT transitioning into a Green Card status, under above two ground Rules), would be ineligible to seek gainful employment in the U.S.

PERMANENT RESIDENTS OR GREEN CARD HOLDERS MARRIAGE TO H1Bs IN THE U.S. or TO BRIDES FROM INDIA OR OTHER COUNTRIES

Question #3: "Our son is a Permanent Resident of the U.S.A., holding a Green Card; he wants to marry a girl who is also in the U.S. on H1B Status. However, her H1B is expiring on July 31, 2017. He is planning to marry on January 17, 2017. Can he marry her and can she get her Green Card? And still continue to stay in the U.S. after her H1B expires, if she has not received her Green Card by then?!”

Answer: Your son can marry her whenever he wants; however, immediately upon his matrimony to her, he has to file a I-140 for her. Here is how exactly it works:

Spouses of Permanent Residents (of Green Card Holders) living in the U.S. or India or abroad, are classified under a visa classification called “F2A”

Application Final Action Dates for Family sponsored preference for F2A as per Department of State Visa Bulletin dated October​, 2016 stood at November 15, 2014, with a Filing Date of November ​22, 2015.

 What is a Final Action Date? (introduced by USCIS in May 2015, as a new step in the filing procedure), Final Action date is the actual date for which USCIS is currently processing the Green Cards for (I-485s) which have an approval date of around November 15, 2014. However, the Filing date is the actual date when an applicant is allowed to file or process his/her I-485 filing.

In other words, your son has to file a I-140 in her behalf as soon as his marriage to her, with necessary accompanying documents (in this case a Marriage Certificate or a Marriage License). He will then get an acknowledgment of her I-140 which is "deemed to be" her Approval date for Filing. In order for your son to file a I-485 on her behalf, the Filing Date (to be) announced by the Department of State, at some point in the future,

​has to cross her “deemed approval” Filing Date. Until that time, he cannot file her I-485 form. If that filing date does not occur before her H1B expires, (you say on July 31, 2017), she will have to leave the shores of the United States, and wait for her Green Card number to come up, receive the same in India and then enter the United States with a Green Card. She cannot extend her stay in the U.S. beyond her H1B expiration date, on the strength of your filing an I-140 for her, otherwise USCIS will deem that she has violated the visa rules, by over-staying in the U.S., and could refuse her a Green Card. 

So those Permanent Residents (on Green Cards) in the U.S. seeking matrimony to those on H1B visa Status in the U.S. BEWARE, you have to be extremely, extremely careful to assure that your spouse has enough longevity on her H1B to get married to a Permanent Resident and stay in the U.S. until she could receive her Green Card in her hands. 

H1Bs, OPTs, F1s living in the U.S. can court Permanent Residents and get married to them, seeking an Adjustment of their status, as long as their eligibility/validity to stay in the U.S., is valid for quite some time, to go through the filing process and obtaining approvals from USCIS,

​(as explained in the preceding paragraph) during which time​ the other spouse can legally remain in the U.S. Talk to your Immigration

Attorney about this process.

 Brides from India have to be extremely careful to accept matrimonial proposals from U.S. Permanent Residents (Green Card Holders). One year and 10 months of backlog in pending applications (from the current final action date of November 15, 2014) could translate roughly to 4-5 years in waiting time before the spouse can join Green Card Holders from India (or abroad). This is because of limited number of immigrant visas available for issuance to this category of applicants under F2A under "country India" Quota, each year. So Permanent Residents/Green Card Holders should be very careful in seeking their spouses from within the U.S.A. or India, in matrimony!

DISCLAIMER: In the U.S. only a practicing Immigration Attorney can give legal advice on immigration matters; I am not a qualified and practicing Immigration attorney, thus cannot give specific advice on immigration matters! What has been discussed above, by way of sharing immigration information, is based on broad general guidelines obtaining (only) and may not apply to specific individual cases unique to them ~ exceptions to every immigration rule always apply but those are ONLY exceptions to specific individual cases and are not general, applicable to all, so you should contact an Immigration Attorney on your specifics.

 

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