Department of Labor appeal pending and new H1B transfer with marriage

K

Kimber Soak

New Member
Would it be ok to apply for a new H1B for another company even if the Department of Labor appeal has been pending (and their office has claimed they lost our papers)? If I went ahead and married while on the new H1B would I be able to continue working with the new company on the basis of the new H1B and my husband's residency sponsorship? Thank you and Blessings!
 
Dept of Labor's appeal would help in PERM approval & in extending H-1B beyond 6 years. If we were to move to H4 & if your husband's I-140 is approved you can as well file for H4 EAD.
 
Thank you for your quick response, whitemimauz3. Kindly please tell me what is H4? My fiance is an American citizen. He is on disability but is currently looking for a job to fully support me as his wife when we marry.

I consulted a lawyer today and he said whoever sponsors me for the new H1B .visa (whether my current job or the new one) should also file a new PERM. After filing the new PERM that is when my fiance and I can marry -- that is also when he may choose to sponsor me and file an EAD -- the PERM he said would be there to fill in the gap if questions about the old PERM/new H1B/marriage would arise.

That seems quite a complicated way to solve things though. Is there any other way to legally marry? What if I just continued to renew the H1B this year whether with an old/new sponsor (without filing a new PERM) while waiting on him to get employment to fully support me. Then we marry file for spousal sponsorship and I resign from the job. Would that void the PERM issue?

Thanks again so much. Happy Fourth of July!
 
If your fiancé is a citizen you can marry him any time you want, and you can even still adjust status as wife of a citizen if you fall out of your current status. Your attorney sounds extremely, quite possibly unnecessarily, over-cautious about your status - there is certainly no legal impediment to you marrying and filing for adjustment as soon as you want. However - without a valid work visa such as H1B still active, you wouldn’t be able to work legally until you get an adjustment-based EAD, which currently could take 6 months or longer.
 
Thanks, SusieQQQ! I believe the lawyer suggested I do the new PERM for the new H1B to protect the status of my employment. You know the new job goes through the whole process of hiring me on an H1B only for them to find out later there is an old PERM issue (Department of Labor said they did not receive the appeal/motion to reconsider documents even when we had noted via USPS tracking that their office did indeed receive the mail) haunting me. He just did not want the marriage, PERM and new H1B filing to be too close together, otherwise immigration would think the marriage was a fraud.

I have the following questions:

1. So since my fiance and I can marry any time under any circumstance, would it be ok to file adjustment of status/EAD some time later when he can show he can fully support me? (What complicates things is we are a thousand miles apart. I was going to get the new job to move to his state.)

2. If I continued to remain in my current job and file the new H1B (with or without the new PERM) here and then have the marriage and adjustment of status a little later would it be ok if my spouse and I lived apart for a while (from a few months to close to a year) to get him settled in his new job and to allow me time to finish job requirements here and prepare to join him? How difficult of a marriage case would that make?

3. With regards to employer green card sponsorship -- can the three stages (PERM, I-140, adjustment of status) be done with different lawyers (should difficulties arise necessitating a change of lawyers)?

Thank you so much. Happy Fourth and Blessings!
 
I don’t know enough about H1/employer sponsorship to answer those questions. I do not personally believe the timing of work visa stuff vs marriage is a big deal for proving the marriage is genuine - there are many other ways to do that, and that is what you will need to focus on for the adjustment interview, whenever it happens. Living so far apart is obviously not ideal from this perspective but make sure you are keeping proof of all the items you talk, see each other etc. Commingling finances after marriage will also help (joint bank account, one spouse on the other’s insurance, etc). Yes, you can file i485 at a later date after you marry once your future spouse is able to show he can meet the i864 sponsorship requirements.
 
@Kimber Soak
Getting green card thru employment based visa is definitely doable but it is time consuming. I believe if you are planning to get married filing family based petition is much less time consuming.
 
Thank you, SusieQQQ and whitemimauz3.

Just one more question -- if I do proceed with filing a new H1B with either my current job or a new one, and then file marriage papers soon after would we be able to ask immigration to speed up the EAD after 3 months of waiting considering I already have employment (we would just be transferring the responsibility of having the job from the H1B to my husband's sponsorship since I would now be contributing to our family income to further support our papers)?

Thanks again so much. Blessings!
 
You can have your employer file H-1B under premium processing so then you would have employment authorization & this same employment income could as well be used in your family based I-130 filing income requirements, and of course you can file employment authorization documents based on your I-130/485 filing which might take 4-6 months for approval.
 
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