I am almost certain this type of situation probably never happened before. Need Advise

S

stayactive4u

New Member
Indian Citizen.
Same US employer for 8 years +
Originally filed in EB3. I140 approved. Waiting for I485.
Have Valid H1-B
Got married to a US citizen. Got conditional green card through spouse.
Marriage issues and thinking of divorce.
I understand if divoreced with in 2 years it affects my conditional green card and i will loose my status.
Can i switch back to my employment based green card?

Please advise.:(
 
Yes. H1B is a dual intent visa meaning the fact that you had prior immigration intent will not affect the approval, unlike for F1, B1, B2 etc.

http://en.wikipedia.org/wiki/Dual_intent

However it is not simply "switching back". You will have to apply for a NEW H1B.

However I will advice you if at all possible, to try to work on your marriage. I'm not saying that because of the green card. Marriage is hard, the grass always looks greener on the other side, and divorce is not usually the best solution.

Best!
 
How long have you been married?

If you divorce and can provide sufficient evidence of a bona fide marriage, you can file I-751 with a waiver request and still get the 10-year green card. So start accumulating that evidence now because it may be impossible to obtain once you're divorced or separated.

If your I-751 is denied, you'll need a fresh new H1B petition to get back into H1B status again. And if you have already used up 6 years of H1B status, you'll have to leave the US for a year to become eligible for H1B again.

However, if the I-140 has not been denied or revoked, I think you can still obtain an employment-based green card through that old I-140.
 
follow-up

Jackolantern said:
How long have you been married?

If you divorce and can provide sufficient evidence of a bona fide marriage, you can file I-751 with a waiver request and still get the 10-year green card. So start accumulating that evidence now because it may be impossible to obtain once you're divorced or separated.

If your I-751 is denied, you'll need a fresh new H1B petition to get back into H1B status again. And if you have already used up 6 years of H1B status, you'll have to leave the US for a year to become eligible for H1B again.

However, if the I-140 has not been denied or revoked, I think you can still obtain an employment-based green card through that old I-140.
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My I-140 is still active. H1-B visa (date stamp) is still valid. Even before I divorce, can i restart the green card process and apply for employment based GC while i still have current GC? My employer is also willing to refile under EB2.
 
stayactive4u said:
H1-B visa (date stamp) is still valid.
Click to expand...
USCIS may have canceled your H1B in their system when you got your green card, which would make it unusable for entering the US.

Even before I divorce, can i restart the green card process and apply for employment based GC while i still have current GC?
Click to expand...

No, you can't file for AOS while you still have permanent resident status. But your employer can file a new I-140.

My employer is also willing to refile under EB2.
Click to expand...
If they do that, you can port the old EB3 priority date to the EB2 petition.

It's very strange that you want to deal with the complexity of another EB GC when you have the option of filing I-751 with a waiver.
 
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