H-1B to Adjustment of Status Through Marriage-Everything you Need to Know

Navigating the journey from an H-1B visa to permanent residency in the United States is a path many skilled professionals embark on. A critical aspect of this journey is maintaining H-1B status while your family-based or marriage-based Adjustment of Status (I-485) application is pending. This article aims to guide H-1B visa holders through the essential steps and considerations for preserving their H-1B status during this transitional phase.

We have many clients who are in H-1B status and ask us to represent them to file their marriage-based green card applications. Many of these individuals plan to seek new employment once their employment authorization is approved. Many people do this successfully but there are a handful of people on H-1Bs who wish to maintain their H-1B status for reasons such as their marriage is on the rocks and they are not sure they will still be married by the time the adjustment of status interview. 

1. Understanding the Importance of H-1B Status:

Maintaining H-1B status while your family-based or marriage-based Adjustment of status (I-485) is pending is crucial. It ensures continued employment eligibility and legal status in the U.S., and serves as a safety net if the family-based or marriage-based Adjustment of status (I-485) application faces unexpected challenges or delays. H-1B status provides the flexibility to travel internationally and safeguards against potential family-based or marriage-based Adjustment of status (I-485) processing issues due to the H-1B’s dual intent nature.

2. Timely Filing of family-based or marriage-based Adjustment of status (I-485) Application:

To transition smoothly, file your family-based or marriage-based Adjustment of status (I-485) application (Form I-485) before your H-1B status expires. This timing is essential to avoid falling out of status. Be mindful of your H-1B visa expiration date and plan your family-based or marriage-based Adjustment of status (I-485) filing accordingly to maintain continuous legal status. This may not be a big issue if the Petitioner/sponsor is a U.S. citizen. If the Petitioner/sponsor is a Permanent Resident/Green Card holder then the H-1B beneficiary must be in status when the Adjustment of status (I-485) is filed. The visa bulletin must be critically monitored during this latter process. 

3. Continuing Employment with H-1B Sponsor:

Remain employed with your H-1B sponsor throughout the family-based or marriage-based Adjustment of status (I-485) process. Any significant changes in employment, such as switching employers or significant job duty changes, may require notifying USCIS and could affect both your H-1B and family-based or marriage-based Adjustment of status (I-485) statuses.

4. H-1B Extensions and Amendments:

If your H-1B visa is nearing expiration, work with your employer to file for an extension. If you change your job role or location, an amended H-1B petition may be necessary. Maintaining a valid H-1B status is critical until your family-based or marriage-based Adjustment of status (I-485) is filed is essential if the Petitioner is a Green Card holder.

5. Travel Considerations:

Traveling outside the U.S. while your family-based or marriage-based Adjustment of status (I-485) application is pending can be complex. If you need to travel, it's advisable to do so on your valid H-1B visa rather than using Advance Parole. Re-entering on H-1B maintains your nonimmigrant status and avoids the complexities associated with re-entering as a parolee.

6. Responding to USCIS Requests:

Be prompt in responding to any USCIS requests, such as Requests for Evidence (RFEs). Timely and complete responses help avoid delays in your family-based or marriage-based Adjustment of status (I-485) application processing and ensure you maintain your H-1B status during the review period. One of the main advantages to having an attorney represent you during your family-based or marriage-based immigration processes is that your attorney is that your attorney will receive a copy of all USCIS correspondence. This can save you years of aggravation and thousands of dollars, especially with the new April 1, 2024, USCIS filing fee increase. For example, if you receive an RFE, Request for Evidence from USCIS and you never received this piece of mail and therefore, didn’t respond to it, your case would be abandoned and denied. 

7. Monitoring Your family-based or marriage-based Adjustment of status (I-485) Application:

Regularly check the status of your family-based or marriage-based Adjustment of status (I-485) application online and stay informed about processing times and any updates on your case. This vigilance helps in anticipating any potential issues and taking proactive steps to address them.

8. Preparing for the Green Card Interview:

While your H-1B status is maintained, prepare for your green card interview, a crucial step in the family-based or marriage-based Adjustment of status (I-485) process. Gather all necessary documentation and rehearse potential interview questions related to your employment and family-based or marriage-based Adjustment of status (I-485) application.

Conclusion:

Maintaining your H-1B status while your family-based or marriage-based Adjustment of status (I-485) application is pending is a strategic approach that provides security and flexibility. It requires careful planning, adherence to immigration regulations, and coordination with your employer. By following these guidelines, H-1B visa holders can navigate this critical phase of their immigration journey with confidence. As we always tell our clients, the value in hiring an attorney for your family-based or marriage-immigration case doesn’t just lie in carefully drafted and filed USCIS petitions. The advice that an experienced family-based immigration attorney can provide you during the process can be invaluable. 

Should you or your loved one have any questions or need representation, please do not hesitate to contact us. Although we are located in New York City we represent clients all over the 50 states of the US. Call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.