Just Got Married Need Help!

K

kenny1982

Registered Users (C)
Hi
I just got married last week. I am a US Citizen and my wife is a H1-B Visa holder. I want my wife to be able to work in the US as like any other permanent resident or US citizen. However I have a couple of questions as to what is needed in order for that to happen. From what I am reading in the forum, I would need a couple of forms filled out, specificially I-130, I-485, I-765, and I-864. Is this all I need? Thanks

Also, let say if my wife get fired from her current position of which is currently sponsoring her H1-B Visa, does that mean she has to go home right away?

Any help is appreciated.
Thanks
Kenny
 
Congratulations on your marriage!

Here's a step by step guide for you to read.

If your wife might stop working in H-1B after you file, but needs to travel outside the country before her approval, you could also file the Advance Parole Document, I-131. (It's free!)

You'll need the forms (which is the easy part) and the supporting documents (which is the hard part). The medical exam (I-693 which you also have to file) can take some time.

If your wife gets fired before you apply for the AOS, then she is out of status. Technically yes, she is supposed to leave the country right away to avoid being out of status. But being out of status is forgiven when she applies for permanent residency based on a US citizen husband; of course there's always a small chance that she'll be put in removal proceedings if she is still here and out of status.

If she stays beyond the I-94 date, in addition she accrues unlawful presence. If she accrues more than 180 days of unlawful presence, she should not travel outside the country until her GC is approved or she has a 3 or even 10 year bar to return.
 
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Form to file

You need the following forms:

(You are the petitioner and you wife is the beneficiary/applicant.)

I-130 (this is from you for an alien relative)
I-485 (from your wife for AOS)

I-765 (optional: for employment authorization for your wife)
I-131 (optional: for advance parole for your wife)

G-325a (Biographic Information of you)
G-325a (Biographic Information of your wife)

I-864 (affidavit of support from you)
I-864A (only if you are not working and you wife is earning for the house)

I-693 (medical exam of your wife)

You should download new forms from www.uscis.gov. You only require the fee for I-130 and I-485. The doctor will charge you for I-693. I recommend that it's better to fill out all the forms and send everything together alongwith checks for the fee. When you'll download the forms, there will be instructions pages. It is time consuming but I suggest that you should read those too.

I don't know what will be the implications if your wife is not on H1b. austriacus has answered it better. If an H1b holder is fired or laid off or not working (or in simple words, does not have pay stubs) for any reason, he/she has two months to either leave the country or start another job. Once another company starts the process to transfer his/her Hb1, he/she can start working immediately.

Best of luck. Don't waste any more time. I filed my case after 9-10 months of getting married, and obviously my time was wasted.
 
Thanks you both for the information. Sorry but I have a couple more questions. Let say I submit all of the necessary documents next week. A month later my wife gets fired. Most likely the immigration office is pending review of my applications, what will happen to my wife? Because the application is pending does that mean she should go back to her country right away since she is "out of status"? Austriacus said that she should go home if she gets fired BEFORE applying for AOS. However, the AOS is probably pending? Does that make a difference or is the answer still the same?

In another instance, let say she got fired 2 months into the application process, is it possible for her to wait another month and a half before going home to see if her EAD will be approved? What what I am reading the EAD card should be approved within 3 to 4 months.

Once she gets her EAD, she does not need the H1B Visa anymore right?

Sorry, if I am asking dumb questions, its just that this is so overwhelming. I just got married a week ago and I am getting right into applying for GC for my wife. Thanks for your patience.
 
Her status will be "AOS applicant" if she is terminated. She should be fine.

kenny1982 said:
Let say I submit all of the necessary documents next week. A month later my wife gets fired. Most likely the immigration office is pending review of my applications, what will happen to my wife?
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She does not need to leave at all.

kenny1982 said:
In another instance, let say she got fired 2 months into the application process, is it possible for her to wait another month and a half before going home to see if her EAD will be approved?
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As soon as her employment is terminated, she is no longer in H-1B status.
Her EAD only grants her authorization to work for any employer.

kenny1982 said:
Once she gets her EAD, she does not need the H1B Visa anymore right?
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Agree with TripleCitizen, she doesn't need to leave the country. In fact, if she leave the country the process getting her GC is going to be more difficult. I was out of status myself before I adjusted to GC via marriage.

The only thing is she cannot leave the country until her GC get approved. She can work right away as soon as she gets her EAD which usually take about 30-90 days.
 
kenny1982, your questions are not dumb, in fact it was very smart of you to investigate my carefully worded response.

First of all, make sure you have proof of filing (e.g. certified mail, return receipt requested). As soon as you file for her AOS, she is no longer required to work in order to be legally in the country, so not only is it ok if she's fired, it's also ok if she voluntarily quits after you file for the AOS (in both cases she goes from H-1B status to "AOS pending" status). If your wife gets fired the day after you file, all she needs to do is sit at home and relax until her EAD comes in, and then she may work again if she wishes.

That's why it's important to retain proof of when you filed, although you'll receive a receipt notice a couple weeks later which will also have a receipt date printed on it and typically the receipt date is a couple days after you filed. (But if it comes down to it, your filing date is the one that matters for such issues as if she's maintained her status.)

There may be reasons why she'd want to maintain H-1B status, however, until the process is completed. In the unlikely event that her AOS is not approved, it would be helpful if she still had the H-1B status to fall back on; also, if she wants to travel, she can leave the country the next day after you file the AOS if she maintains H-1B status, and doesn't have to wait for AP. But other than that, maintaining the H-1B after your AOS filing date is of no importance.

Just as a heads up, let's say she keeps her H-1B job and her EAD comes in ... she does not have to and should not fill out a new I-9 as if she's working on EAD if she stays in the same job; it will unnecessarily invalidate her H-1B status. She only needs to fill out a new I-9 when she receives the GC, if she works for the same H-1B job the whole time.
 
Triple Citizen said:
As soon as her employment is terminated, she is no longer in H-1B status.
Her EAD only grants her authorization to work for any employer.
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H1b doesn't work like that. If a person on H1b resigns or quits or is fired or laid off, he/she has 60 days to either leave the country or find another job. During these 60 days, this person is NOT out of status. This new job should file an application to transfer H1b before the 60 days are over. As soon as the transfer process "starts", that person remains in status.
 
mfghazi said:
H1b doesn't work like that. If a person on H1b resigns or quits or is fired or laid off, he/she has 60 days to either leave the country or find another job. During these 60 days, this person is NOT out of status.
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Wrong. The H-1B holder is out of status the day employment terminates.
 
Triple Citizen said:
What? You have any official material/literature to back this claim up???
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I can look up for it when I'll have time.

This info is given to me by several "lawyers" and "immigration consultants", and people who have undergone this process. This also include the most famous law firm for immigration in Chicago.

Since you claim not to be a lawyer or an immigration consultant, your comments should never be considered as legal or professional advice as they are not meant to be such.
 
mfghazi said:
I can look up for it when I'll have time.

This info is given to me by several "lawyers" and "immigration consultants", and people who have undergone this process. This also include the most famous law firm for immigration in Chicago.

Since you claim not to be a lawyer or an immigration consultant, your comments should never be considered as legal or professional advice as they are not meant to be such.
Click to expand...

Topic: Immigration Issues

Expert: Robert Hollander Esq.
Date: 5/18/2007
Subject: H1-B- was fired from job-how long can I stay?

Question
I was recently fired from my job for working on the side. I have an H1B visa with about 6 months left. In the meantime I am looking for a new job but friends have told me that I immediately fall out of status when my employment ends. Now if I do get a new job offer (I've been here 3 months out of status) will I have a problem with getting a new H1-B?

Answer
There is no grace period for H-1s. You can file new I-1290 and provide recent paystubs from your last company and hope they do not ask for more. As long as they do not find out about the work on the side or ask for too recent of paystubs, it should be ok.

link: http://en.allexperts.com/q/Immigration-Issues-344/H1-B-fired-job.htm

----------------------------------------

It appears that the dot-com I am working for is planning a massive layoff. How much time do I have to remain in the U.S.?

There have been a lot of comments in the press in late March (2001) about a statement from INS spokesperson Linda Dodd-Major (Acting Director of DOJ/INS Office of Business Liaison), that due to an increasing number of H-1B's subject to layoffs, the INS would not strictly enforce its rule that a new petition must be filed immediately.

The letter below sets the record straight and is the most definitive statement we have seen on the H-1B grace period.

"As for a 10 day "grace period" following termination of employment-based nonimmigrant employment, there is none. Although the H-1B alien can extend 10 days before or after the approved period, for the purpose of making personal arrangements in anticipation of or following the approved H-1B employment, that "grace period" must be included within the approved stay in the US, as indicated on the Form I-94, or it does not exist. An H-1B (or any other) alien may not simply tack it onto the expiration date on the I-94. Since H-1B classification derives from the approved employment, the status ends if and when the employment ends. No grace period. Accordingly, if an H-1B or other employment-based nonimmigrant is laid off, his only chance for getting INS to approve a request for change of status or change in approved H-1B employment after that time is to include a letter with the petition asking the Service Center director to exercise his/her discretion to approve the change in spite of the status lapse. Whether this is done by a SC director or not depends largely on the facts of the case, typically that the lapse was short and the reason for it beyond the alien's control. If the SC director does not exercise the requested discretion to "forgive" the status lapse, in the case of an H-1B alien, the case will be treated as a new H-1B case, needing a new H-1B number (subject to the cap). The alien will not receive a replacement I-94 from the SC and will have to leave the US, obtain a new visa (if necessary), and re-enter the US, receiving a new Form I-94 that can be used for employment eligibility verification purposes for the new (approved) employer/employment."

link: http://www.stanford.edu/dept/icenter/visas/faq/h1faq_student.html

------------------------------- AND FINALLY --------------------------

d. Consequences of termination for H1B employee :

Contrary to popular belief, rumor, and other confusion from various sources, there is no in-status “grace period” for terminated H1B employees. Therefore, the status ends on the final date of employment. A 60-day grace period was proposed by the INS in its June 19, 2001 Memo on the American Competitiveness in the Twenty First Century Act (AC21), as discussed below. This is still only a proposal, not the law.

link: http://www.murthy.com/news/UDisster.html
 
mfghazi said:
This info is given to me by several "lawyers" and "immigration consultants", and people who have undergone this process. This also include the most famous law firm for immigration in Chicago.
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If I had a dollar for every time a "lawyer" (famous or not), "immigration consultant" or even a "USCIS employee" gave poor, incorrect or downright dangerous advice, I'd be a very rich man.

Here's where the 60 days comes from - INS back in 2001 gave out guidance for H-1 portability. Since there were large layoffs at the time, and INS had the common sense to recognize that an H-1 alien cannot usually control when status ends, they said that if a reasonable time (60 days) had elapsed since employment terminated, they would use their discretion to waive the requirement that the alien depart and re-enter the US in a change of employment petition.

Please note that this is entirely discretionary behavior. The letter of the laws and regulations state that you are out of status when your employment ceases, no ands ifs or buts. USCIS can discretionarily waive this when approving a COS/EOS, but doesn't have to. If you try and claim that you are in fact in status for 60 days, you have a rude awakening coming.

For the purposes of this discussion, it's all irrelevant. Since the OP is a US citizen, his wife could be out of status with no penalty or ill-effect.
 
That 2001 INS memo was a sign of limited compassion following the bursting of the dot com bubble. I would never bank on it today, but it seems people do :)

TheRealCanadian said:
Here's where the 60 days comes from - INS back in 2001 gave out guidance for H-1 portability. Since there were large layoffs at the time, and INS had the common sense to recognize that an H-1 alien cannot usually control when status ends, they said that if a reasonable time (60 days) had elapsed since employment terminated, they would use their discretion to waive the requirement that the alien depart and re-enter the US in a change of employment petition.
Click to expand...
 
Thanks for everyone's input but I am totally confused now. So basically there is no grace period for H1-B holder if their employement get terminated? They MUST go home immediately? HOwever because I am a US citizen and my wife married me and we are applying for the GC and EAD and AOS, if my wife gets terminated from employment, she does not need to go home immediately? She can stay with me until she receive her GC?
 
kenny1982 said:
However because I am a US citizen and my wife married me and we are applying for the GC and EAD and AOS, if my wife gets terminated from employment, she does not need to go home immediately? She can stay with me until she receive her GC?
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That's correct. Once her I-485 has been received by USCIS, she is free to stay.
 
kenny, here are the two situations:

1. If your wife gets terminated from employment AFTER your filing date, she does not need to maintain H-1B anymore to stay legally in this country.

2. If your wife gets terminated from employment BEFORE you file, her H-1B status immediately ends and she is expected to go home immediately to avoid being inside the US and "out of status." If she stays beyond her terminated H-1B status, she has a status violation and is considered out of status. However, when she then files for a green card, and her petitioner is a US citizen spouse, such an "out of status" period is forgiven (as opposed to, if instead she were to file for a green card based on several of the other available ways, e.g. through employment, the "out of status" period would be a problem). If your wife is out of status for a while, it is possible that "removal proceedings" will be initiated. If she stays beyond a certain date stamped on her I-94 card, she also starts to accrue something nasty called "unlawful presence." But, if you look around these forums, there are tons of people who have overstayed and are now out of status and are not (yet) in removal proceedings, some of them have been out of status for years. So if your wife were to lose her job, your wife certainly wouldn't be alone and wouldn't become the prime overnight target for removal.

But, let's examine the worst case, she loses her job and is forced to return home (and does so before 180 days after her I-94 date, which would be at least a half year away from when she loses her job). Then, you can file a K-3 visa for her to come back within about 6-9 months.

So to put it in perspective, since she is currently in valid H-1B status, married to a US citizen, perhaps only weeks or months away from filing for AOS, puts her in a very safe situation and you have several options to fall back on to keep her here or bring her back.
 
After reading the last two response, my worries lessen a lot. Thanks a lot everyone, you guys have been a great help and I cannot thank you enough for it. I am sure I will have more questions as the process begins. Again, Thanks.!
 
austriacus said:
However, when she then files for a green card, and her petitioner is a US citizen spouse, such an "out of status" period is forgiven (as opposed to, if instead she were to file for a green card based on several of the other available ways, e.g. through employment, the "out of status" period would be a problem).
Click to expand...

The only situation where this out of status period would be an issue is in a family-based category. The EB categories have 245k relief available to them, which allows an alien to be out of status for up to 180 days since the last entry and still file the I-485.

To our OP, I wouldn't worry too much about being out of status for a few days or weeks. It's more important to get the I-485 package right.
 
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