US citizen marrying an Expired H1 Visa holder

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narayana7

Registered Users (C)
Hi Everyone,

I am US citizen would like to marry to an H1 Visa holder whose H1 visa expired couple of months back. Now the H1 holder would like to go back to her country. My question

1) Is it possible to marry that person when she is in USA?

2) if so, please is the procedure?

3) Is she required to go back to her country and then I need to submit papers for her immigration?

4) Do I need to consult an attorney?

Before consulting an attorney I would like to have your suggestions and views on how to approach on these issues.

I prefer to get marry here without her leaving this country.

Thanks in advance

Narayana
 
You can marry her and have her stay in the US while waiting for the green card, provided you file the right paperwork. For more details, ask in the Family Based Green Cards section.
 
Immediate relatives of US Citizens are exempt and adjust status while in unlawful presence in the US. However, if she leaves while application is pending, then problems will arise.

I would advise not to let her leave the US until after her GC application has been approved and she has the plastic card in her hand. The fact that her status expired might cause the 3 year ban to kick in. You have told us how long ago the visa expired, but it if its more than 6 months but less than 1 year, she will be banned for 3 years if she leaves while the adjustment of status is pending. Do not even bother applying for an Advance Parole document as this will NOT protect her from the ban.

Bottom line, marry her, file concurrently and go through the entire process. Once her status is adjusted and she has her GC in hand - she is free to come and go as she please [provided she maintains the PR requirements].
 
LolaLi said:
Immediate relatives of US Citizens are exempt and adjust status while in unlawful presence in the US. However, if she leaves while application is pending, then problems will arise.

I would advise not to let her leave the US until after her GC application has been approved and she has the plastic card in her hand. The fact that her status expired might cause the 3 year ban to kick in. You have told us how long ago the visa expired, but it if its more than 6 months but less than 1 year, she will be banned for 3 years if she leaves while the adjustment of status is pending. Do not even bother applying for an Advance Parole document as this will NOT protect her from the ban.

Bottom line, marry her, file concurrently and go through the entire process. Once her status is adjusted and she has her GC in hand - she is free to come and go as she please [provided she maintains the PR requirements].
Click to expand...

Thanks for the information.

Her H1 was expired on Oct 31 2008 and she applied for F1 to adjust her status. Her F1 application is in process for a decision. I am not sure whether this will be considered favourably.

I just wanted to make sure that if I marry her here and her status can be adjusted by doing proper documentation. Right? How long she needs to get her status adjusted?

Thanks for your input here.

Narayana
 
Is F1 considered a dual-intent category? If it isn't then it might not be favorable - however, this does not mean you cannot proceed with the marriage and adjustment of status. I would consult an attorney for preliminary advice/consultation.

Depending on where you live, it can take any where from 4-12 months to adjust status. Check the USCIS web site for the processing time of your local DO. In Buffalo for example, they complete applications in less than 6 months on average.
 
LolaLi said:
Is F1 considered a dual-intent category? If it isn't then it might not be favorable - however, this does not mean you cannot proceed with the marriage and adjustment of status. I would consult an attorney for preliminary advice/consultation.

Depending on where you live, it can take any where from 4-12 months to adjust status. Check the USCIS web site for the processing time of your local DO. In Buffalo for example, they complete applications in less than 6 months on average.
Click to expand...

Thanks for the update.

I did not understand what is dual intent category. Can you explain more on this?. I dont think her F1 will be considered favourably. In that case, if I get marry her will she can stay here?
I live in Oklahoma State. I dont know what is the processing time here to adjust the status.

Narayana
 
Generally all non-immigrant visas (NIV) require an intent of not staying permanently in US. Expressing an intent to stay in NIV will bar you from getting that visa.

However some visas are dual intent (like H and L visas). This means that you can apply for PR while in that status and also express intent to stay in US permanently. For example, while getting an renewal H1 stamp in your home country, you can answer the question that "Do you intent to immigrate to US" or "Has anyone or you applied for any immigrant visa" without affecting the chance of getting that Visa (assuming that you have I140/485 pending)

B/F visas are NOT dual intent. Showing an intent to reside permanently in US will bar one from getting that Visa. Marrying a US Citizen/LPR strongly intends that person wished to stay in US permanently.

Hope this clarifies.
 
rpranesh said:
Generally all non-immigrant visas (NIV) require an intent of not staying permanently in US. Expressing an intent to stay in NIV will bar you from getting that visa.

However some visas are dual intent (like H and L visas). This means that you can apply for PR while in that status and also express intent to stay in US permanently. For example, while getting an renewal H1 stamp in your home country, you can answer the question that "Do you intent to immigrate to US" or "Has anyone or you applied for any immigrant visa" without affecting the chance of getting that Visa (assuming that you have I140/485 pending)

B/F visas are NOT dual intent. Showing an intent to reside permanently in US will bar one from getting that Visa. Marrying a US Citizen/LPR strongly intends that person wished to stay in US permanently.

Hope this clarifies.
Click to expand...

Now I understand the meaning of dual intent. Thanks for the update.

Now the question - The girl who came on H1B visa and her I 94 valid upto 1st Oct. 2008 and since here H1b could not get extended, she applied for extend/change Non Immmigrant status to M1 on Nov 12 2008 and she is wating for the reply on the status of AOS. In this situation, is it OK to get married, if yes, what are the things I need to start, if Not, what are the consequenes.

I appreciate your views on this.

Narayana7
 
Because change of status (COS) was filed after previous status expired, chances to get a positive decision are very slim. If COS is denied, unlawful presence will start ticking from I-94 expiry date. Accumulation of 180 days of unlawful presence triggers 3 year re-entry ban. Proceed with marriage and file I-130+I-485 after you get marriage certificate. This is the best way, but not the easiest.
She can leave the US before accumulating 180 days to avoid complications with her Green card application (you file I-130 after marriage and she applies for immigrant visa AFTER I-130 is approved), but in this scenario you may be separated for a long period after the marriage. I do not think it's in your best interest.
 
All of the above are CORRECT. Stay put, don't let her go anywhere until she has the plastic I-551 (green card) in her hands.... be smart !!! :)
 
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