H1B to Green Card - spouse?

B

bahookie

Registered Users (C)
Hi there
We are a gay couple, both from the UK. My partner has H1B, I have extended B2 for the length of her H1B. This is the solution they had before the wonderful news today that DOMA will no longer be defended.
A regular spouse of H1B holder would get H4, but would still not be allowed to work.

Now that there is hope that we can be treated as a real married couple, my partner's company can apply for her Green Card.
As a B1 holder, if she had applied I would have had to leave the country.

What status would I be as spouse of someone moving from H1B to Green Card, and how long does this take?
Can a spouse of someone moving in this way work?

Thanks for any help
Bahookie
 
The mere fact that the US government does not intend to defend DOMA in court does not mean it has been struck down, nor has USCIS created any procedures on how to handle same-sex partners. Nothing has changed - yet.

And keep in mind that you will need to have your marriage recorded by a government if USCIS changes its procedures when the law is struck down.
 
Premature hope, unfortunately for you.

DOMA is still an active law, and even before DOMA same-sex marriages were not recognized under immigration law. It will require more than the dropping of DOMA for same-sex couples to get immigration benefits. Regulations will have to be written to provide such benefits. And that won't happen with Republicans controlling the House.
 
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bahookie said:
My partner has H1B, I have extended B2 for the length of her H1B.
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She has less than 6 months remaining on her H1B? I hope you are aware that B2 status is granted for only 6 months maximum at a time, even if the B2 visa itself is valid for multiple years.

If you overstay the B2 by more than 180 days, you face being banned from the US for 3 or 10 years, even if immigration law starts to recognize same-sex marriages.
 
Yes but what is the answer to the question?
What is the status of the spouse of a H1B holder during the transition to Green Card?
How long does that take, and can the spouse work during the process?

I do realise that there has been no concrete advance here, but if you were in my position you'd want to look on the bright side and hope.

Anyone know the answers to my questions about the status of a spouse in these circumstances?
 
Thank you for your concern, but we are well aware of the limitations of a B2 visa, and the nastiness of border guards every time I went home to "recharge" on a 6 month entry.
I have been denied entry because they weren't familiar with an extended B2, and each time I return from a trip Canada I'm escorted from the car by 4 armed guards, leaving the keys in there.
I'm put in rooms at airports and stared at, and basically not really treated like I come here and only contribute financially and materially to the country.

I've been here for 4 years and never overstayed by even 1 hour because as you can see, I am well aware of the welcome afforded me.
 
ps as an aside, we are married in Scotland and then married again in Connecticut. We're thinking of state hopping for many weddings just for the sheer joy of it
 
bahookie said:
What is the status of the spouse of a H1B holder during the transition to Green Card?
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While one spouse has H1B status, which can be kept during the green card process, the other spouse is eligible for H4 status. This is only for heterosexual married couples; same-sex couples get no immigration benefits from each other and must immigrate independently.

Once H1B status is lost, either due to expiration or changing employers, H4 status is also lost. But then the primary spouse may remain in the US with a pending I-485 and continue to work with EAD card, while the derivative spouse is also eligible for the same (note that if the primary and derivative I-485 applications are not filed together, things may get complicated and cause the derivative to have to leave the US and wait for months or years outside the US, but I won't get into those complexities right now).
 
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You're lucky they didn't flat out refuse entry and cancel your visa. That's what would happen to most other people who spent the bulk of 3 or 4 years inside the US with a B2 visa.
 
<What is the status of the spouse of a H1B holder during the transition to Green Card?>

You will not derive any immigration status from your H1B spouse. You will need to find another way to gain immigration benefit on your own, such as employment based immigration.

Immigration law in the United States is governed by federal law. Currently, federal law does not recognize same sex marriages. If you or your spouse submit an immigration petition (marriage based) on behalf of your same sex partner, the USCIS will deny the petition.

(I) Same Sex Marriages .

Whether an alleged marriage is valid for purposes of immigration is a question of Federal law, not of State law. In 1996 Congress clarified the Federal law concerning recognition of marriage by enacting the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). Pub. L. 104-199 provides a statutory definition of "marriage", and of the concomitant term, "spouse". Section 7 of the Defense of Marriage Act (Pub. L. 104-199) states:

Sec. 7. Definition of ‘marriage’ and ‘spouse .’ In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

For a relationship to qualify as a marriage for purposes of Federal Law, one partner must be a man, and the other a woman. This definition applies to the construction of any Act of Congress and to any Federal regulation. USCIS , therefore, must administer the Immigration and Nationality Act in light of section 7 of Pub. L. 104-199 and deny any relative visa petition (or any other application for an immigration benefit) which is based on a same sex marriage.

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-4484.html
 
Jackolantern said:
You're lucky they didn't flat out refuse entry and cancel your visa. That's what would happen to most other people who spent the bulk of 3 or 4 years inside the US with a B2 visa.
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You know, I'm not lucky. The B2 visa is perfectly legal and given to me repeatedly by the US Embassy in both London and Belfast.
What is unlucky for me is that the massively and rapidly expanded border guard force are really badly acquainted with the actual law they are enforcing.
I can't post a url.. so for clarification please google B 2 CLASSIFICATION FOR COHABITATING PARTNERS. The dispatch to all embassies and borders explains it very well and is something I have taken to carrying around with me.

And why would they cancel a visa they offered to me in the first place? This doesn't make sense.
It was given to me for the duration of my other half's H1B.
 
bahookie said:
And why would they cancel a visa they offered to me in the first place? This doesn't make sense.
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They have refused entry or canceled B2 visas for people who overused the visa (i.e. stayed in the US so long and so often that the US appears to be their primary residence) without overstaying.
 
Jackolantern said:
They have refused entry or canceled B2 visas for people who overused the visa (i.e. stayed in the US so long and so often that the US appears to be their primary residence) without overstaying.
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A clarification needs to be made here - the B isn't entirely for business and pleasure visitors. In a lot of cases, where as a matter of policy they want to admit someone for a period of time they use a B instead of creating a new visa classification.

In some cases, B aliens can actually work. TN holders and other professional types can bring in their domestic servants on a B, and that alien would be eligible for an EAD for the duration of B status. I've yet to ever meet a TN holder with paid domestic help, but there's a first for everything I guess. So the notion that a domestic partner of an H holder who is ineligible for an H-4 be granted a B by the consulate makes sense.

And I'm not surprised in the slightest that CBP gives them grief over it.
 
TheRealCanadian said:
A clarification needs to be made here - the B isn't entirely for business and pleasure visitors. In a lot of cases, where as a matter of policy they want to admit someone for a period of time they use a B instead of creating a new visa classification.
...the notion that a domestic partner of an H holder who is ineligible for an H-4 be granted a B by the consulate makes sense.

And I'm not surprised in the slightest that CBP gives them grief over it.
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THANK YOU! Being offered a visa and using it is not overusing or misusing it.
I wish I could post the link to the dispatch here so that someone else can find it if they are lost. I came here an innocent so to speak, I hate the idea that others find themselves up against everyone they meet and talk to. This isn't rocket science.

telegrams_1414

If you google that you'll get to the dispatch for B2 classification for cohabiting partners. If you are in my position, be sure to carry it with you whenever you are in contact with a border guard.
Never enter through a wee out of the way border crossing, big ones are better trained and more diverse.
Be really concise when speaking to them, never give any more info than they ask for
Carry proof of your health insurance
Call them sir and be submissive, patient and respectful.

Anybody worried can contact me for more info. As they say in Scotland, I'm old hand at this :)
Jane
 
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