If you're an H1B visa holder about to marry a US citizen, congratulations on this momentous step! This marks the potential beginning of your journey toward obtaining permanent residency in the United States. Let's delve into what this process entails and how you can smoothly navigate this important transition.

I have an H-1B visa and am thinking of marrying my US citizen partner. Is that okay?

Visa or no visa, finding love is wonderful! This blog is a guide to make sure you don’t lose your legal status, your love, and your mind!

If you are on an H-1B visa, there is no reason you can’t get married to a US citizen as long as you honor the immigration laws and procedures that apply to most non-immigrants transitioning to an immigrant visa (marriage-based Green Card). The following are some important considerations to keep in mind:

90-Day Rule

Generally speaking, it’s not advisable to get married to a US citizen or Green Card holder within 90 days of your arrival into the US if you are entering on a non-immigrant visa. The H-1B visa holder must, therefore, make sure they don’t get married within 90 days of arriving on their FIRST entry as an H-1B visa holder. One of the few exceptions is a case where the recent entry before marriage is not a new “entry” but a continuation of many trips to the US on the visa, but even this will be subject to interpretation by the interviewing officer during the Adjustment of Status interview.

Unanticipated Denial of Marriage Case

Because we can never predict the outcome of a marriage-based case, it’s not a good idea to give up your non-immigrant H-1B status if you can avoid it, even though an Adjustment of Status case is pending based on marriage. The following example will reveal the horrors of how badly this can go:

Mr. T is marrying his US Citizen girlfriend. He files a marriage-based Green Card case and decides to let his H-1B expire as he has just received his EAD (work permit) and is excited to leave the bondage of the H-1B employer. Unbeknownst to Mr. T, a Request for Evidence (RFE) was issued by USCIS, which he and his wife never received. The RFE due date came and went, and then the couple found out their case was denied due to abandonment (not responding to an RFE results in abandonment). Where does this leave Mr. T?

• Since the entire marriage-based case is denied, the EAD (work permit) is canceled. Therefore, the foreign national spouse previously on H-1B is no longer authorized to work until the couple refiles the case and waits for the new EAD (approximately six months from filing). Hence, this amounts to a loss of employment income for about six months (if Mr. T was making $5,000 a month, that’s a loss of $30,000 in income). Fortunately, however, the fact that Mr. T is out of status will not be held against him and he is still eligible to file for Adjustment of Status since he is the immediate relative of a US citizen (subject to any other admissibility issues). Note, however, that this would not be the case if he were married to a permanent resident, as the beneficiary has to be in status when a permanent resident spouse petitions for the beneficiary. 

• USCIS filing fees are lost and not recoverable. The couple will have to refile the case and pay the USCIS filing fees of $535 for the I-130 Petition and $1,225 for the I-485 Petition.

• The above financial losses can result in enormous stress on the new marriage because when one spouse is unable to work and is sitting at home unable to financially contribute, it can have a negative impact on one’s self-esteem and relationship. After all, the rent is still due! 

• If a reason for emergency travel arises (i.e., a loved one abroad is sick) and the foreign national travels abroad, they would have to wait abroad to process the marriage case via consulate processing. They will no longer be able to adjust their status stateside, as they wouldn’t be able to enter the US (expired H-1B and no advance parole). This wait time abroad can lead to a one-and-a-half-year separation for the couple and lead to career disruption for the foreign national. 

Granted, the chance of this happening isn’t enormous, but this is just one of the many situations that can go wrong. It’s just a matter of maintaining the H-1B for a few months more, and it’s best to hang in there and wait for the Green Card before giving up one’s H-1B status. 

H-1B Visa holders are not impervious to divorce

When we fall in love, we never imagine that things won’t work out. All legal precautions go out the window; perhaps because legalities are a buzzkill. But what if the H-1B visa holder allowed their visa to expire due to the marriage case and then the marriage doesn’t work out? Please keep in mind that the marriage-based Green Card journey is a long one with many important steps:

1. Approximately a year after filing the Green Card case, you’ll have your Green Card interview, after which you will be issued a Conditional Green Card. In most cases, the card will only be valid for two years if the couple has been married for less than two years.

2. Ninety days before the two-year Green Card expires, the couple will have to go through the Removal of Conditions (I-751) process where the temporary conditions on the Green Card will be removed and a 10-year Green Card be granted. Unfortunately, the processing time for the adjudication of the I-751s is usually about 1.5 years which is why, quite often, the foreign national spouse will want to apply for US citizenship three years into their Green Card anniversary. This happens to be a great strategy in fact, as both the I-751 and naturalization will be adjudicated together in one interview and you end up saving a lot of time. So, the bottom line is that the marriage would have to remain intact and thoroughly documented for nearly five years to gain the benefit of the expedited three-year naturalization vs. the five-year naturalization. Since studies suggest that the risk of divorce is highest within the first two years of marriage, it is wise to take a humble and sober look at your situation. 

The H-1B visa is a unique visa. It’s the only one of two visas considered a dual intent visa (the other one being the L-1 visa), which means that the H-1B visa holder can travel on their H-1B visa without abandoning their marriage-based Adjustment of Status case as long as they (1) didn’t use their advanced parole to formally “enter” the US, and (2) didn’t begin to use their work authorization with their employer. The H-1B is truly a flexible visa, as it can be used to travel BEFORE receiving advanced parole. For most other visa categories, the Adjustment of Status would be completely abandoned if the foreign national traveled without advance parole, for example, if the foreign national had an O-1 visa. Hence, one of the first things we ask our marriage-based Green Card Adjustment of Status clients is, “What are your travel plans over the next year?” 

The lesson is that all the above horror scenarios can be avoided by just maintaining the H-1B visa. Working closely with an attorney who is experienced in the many nuances of H-1B marriage cases will not only increase the chances of your case going well but will also keep you one step ahead of your case by helping you plan your life to avoid or minimize disruption.

Over the years, we at Khunkhun Law have helped countless individuals obtain and keep their Green Cards. Retaining one of our attorneys will ensure that your case is in the right hands, as we offer a customized approach to each case.

If you need help with adjusting your status from an H-1B visa to a marriage based Green Card, call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation.