Understanding Your H-1B Visa’s Dual Intent Benefit
Most temporary visas serve a single purpose. They get you to the US for the reason you need to go and nothing further. However, the H-1B visa is what’s called a “dual-intent” document. It allows you to work in the US and seek permanent residence there at the same time.
While you’re in the US under an H-1B visa, you’re allowed to apply for a green card without becoming a suspect of fraud or misrepresentation of your original purpose. However, the steps to take to apply and qualify for a green card from an H-1B visa vary depending on whether you’re looking for a green card for yourself or for a marriage to a US citizen.
Regardless of the reason for your potential move from an H-1B visa to a green card, you’ll want to have the help of an expert immigration lawyer. They’ll aid you in completing the necessary forms, answering the questions online, and applying for a work permit. Having a lawyer also ensures your request looks legitimate.
Getting Your Green Card Through Marriage to a US Citizen
Switching your status from an H-1B visa holder to a green card through marriage is completed in one of two ways. You’re either marrying a US citizen or someone who is already a green card holder.
When you’re marrying a US citizen, the paperwork is more streamlined. You’ll file Form I-130, the family sponsorship form that establishes your relationship. Then, at the same time, you can complete and file Form I-485, which is the application that requests a green card. Because these two forms are completed concurrently, it reduces the time it takes to process your request.
Please note that after you file Form I-485, you must receive a travel permit before you leave the US, or your green card application will be considered abandoned, and you’ll have to start over.
You’ll also need an Employment Authorization Document (EAD) to work while on the green card path. You can file for this work permit when you complete the other documents. However, it can take up to six months to receive the work permit approval, depending on USCIS processing time.
You can continue employment as long as your H-1B visa is still active. When it expires, you’ll have to stop working until you receive the new authorization if you don't have a separate work permit. It’s a smart idea to file this application alongside your green card request even if you think your H-1B visa won’t expire before you get the new permit.
Getting Your Green Card Through Marriage to a Green Card Holder
If the person you’re marrying holds a green card, and you’re in the US on an H-1B visa, expect a more complicated path to your goal. You must file the Form I-130 family sponsorship paperwork to demonstrate your relationship and the Form I-485 to request a green card.
Unlike marriage to a US citizen, the difference is that you can’t file these forms concurrently. You must wait until you receive visa number after your Form I-130 is accepted. Once you do, you can submit your green card application. But this can take up to two years before you receive the visa number. Your H-1B visa may expire during this time, and you’ll need to request an extension or return to your home country.
Again, please note that should you leave the US without a travel permit, your green card application will be considered abandoned, and you’ll need to begin the steps again.
You may continue to work while your H-1B visa is active. Filing for the EAD work permit is completed when you request your green card. The problem with this is the delay between the family sponsorship paperwork and receiving your visa number to file for the green card. If your H-1B expires and you’ve reached the six-year maximum time in the country, you’ll need to return home to finish your green card request.
Of course, there is no way to plan when you’ll fall in love and with whom. But the more time you have left on your H-1B visa, your path to a green card becomes easier.
Possible Obstacles to Your Green Card
Along the path to your marriage green card, you may encounter obstacles. It’s beneficial to have an immigration attorney working with you to overcome these.
One common challenge is the timeline issue, which we discussed above. Your lawyer can advise you as to whether you have options to stay in the US when your H-1B visa expires, such as temporary visas and extensions. But another challenge occurs when the sponsoring spouse’s status changes.
In this case, it can be a good problem. If your spouse was on the path to US citizenship and received this while you were applying for a green card, you can request USCIS to upgrade your case. When this occurs, you are able to file your whole green card application, including the work permit, immediately.
If you’re planning to get married while working under an H-1B visa, call Visa2US as part of your wedding plans. At Visa2US, we take the stress out of filing for your green card and can advise you as to any other rights you may have to keep you in the States and actively employed.
Contact Visa2US today to see how we can help you focus on enjoying your new marriage instead of worrying about your legal status in the country.