The H-1B Visa to Green Card: A Guide to Applying for Permanent Residency after Marriage to a US Citizen or Green Card Holder

By marrying a US citizen while holding an H1B visa, you can pave the way toward pursuing permanent residency through the adjustment of status process. This process involves transitioning from a temporary work visa to obtaining a green card grounded in your marital relationship. You can apply for a marriage-based residency permit (Green Card) when you're an H-1B applicant who fell in love with and married a United States Citizen or even a legal permanent resident so that you can continue to live in the United States permanently and keep working. Permanent residency also provides you with an expedited road to citizenship in the United States if you remain married to the United States citizen spouse for three years after receiving your Green Card.

It's essential to understand the procedure because it can be confusing, and there are significant distinctions based on whether your spouse is a U.S. citizen or a Green Card holder.

Unlike most temporary visas, the H-1B visa is a "dual-intent" visa, meaning that its holders may enter the United States and work while simultaneously applying for a Green Card. This is significant because H-1B visa holders can begin the process of applying for their marriage-based Green Card without fear of being accused of lying about their objectives when they originally entered the United States.

Whether you are marryiing a U.S. citizen or a Green Card holder, the way these cases are managed can differ significantly. Also, the timelines for the latter can be longer which means that the H-1B spouse will have to make sure that they take care of their status while the Green Card case is pending.

There are two routes to get a green card.

Changing from an H-1B visa to a green card through marriage can be done in one of 2 ways.

Let's take a closer look at each route:

Option 1: If you're marrying a U.S. Citizen, this is your best option

The path to a Green Card for spouses of US residents is certainly much faster than applying for a Green Card through your employer. If your employer has already began your Green Card process by filing a labor certification or an I-140, your spouse can still apply for you and these cases can run side by side until you receive your Green Card through marriage.

Apply for a work permit

Because of the extensive application procedure, we always apply for a work permit (formally known as the "Employment Authorization Document," or EAD) at the same time as submitting your other documents even though you may wish to continue working for your H-1B employer on H-1B status. You'll obtain your work permit approximately 6-8 months after filing the case.

If your H-1B visa expires when your permanent residency application is pending and you don't have a supplementary working visa, you'll have to quit working while your case is resolved.

The registration for a working visa (Form I-765) is included in the I-485 filing fees and has no bearing on the outcome of your Adjustment of Status application. Many applicants apply for work permits as a precaution in case their H-1B card expires while they wait for their permanent residency. If you don’t wish to use your work permit but want to continue working on your H-1B you have to make sure you do not activate your work permit through your actions. Our office can guide you along each step of the way to make sure you are safe. 

Option 2: When you're married to someone who has a green card

H-1B holders applying for a Green Card based on marriage to a legal resident face a much more complex process and longer waiting lists than candidates married to United States citizens.

If the visa bulletin numbers are not current (F2A category) then you will not be eligible for simultaneously filing your I-485. Rather, you can only apply for an I-130, and wait for a visa number to be issued. (Visa numbers are given to spouses of US Citizens instantly, but not to spouses of Green Card holders.) You will be able to apply for your Green Card once you have received a visa number. In recent years, however, the F2A category has been current more often than not, which means that the H-1B spouse can submit the I-130 along with the I-485, I-765, and I-131 at the same time so they can run concurrently.

How Long Does It Take to Change from H-1B Status to a Permanent Resident of the United States after marrying your US Citizen Spouse?

If you are married to a Green Card holder, your case will take longer to process as opposed to if you are married to a United States Citizen as follows:

- Spouses of citizens of the United States: 8–12 months

- Spouses of Green card holders: 18–30 months

What Happens if my H-1B Visa Runs Out Before I receive my Green Card?

The section is especially critical for H-1B visa holders, who must normally depart the United States after their sixth year of H-1B position and travel to their native country for a while before applying for another H-1B visa. If your H-1B expires before you submit your Green Card application, you'll have to move out of the country and apply for a permanent residency through consular processing, even if your I-130 has been approved.

If your H-1B visa expires, you may be able to get a new temporary visa, such as an F-1 study visa, to prevent a protracted lapse in status. Sadly, while the F-1 visa will allow you to stay in the United States, it is not a work permit, therefore you will be unable to continue working for your H-1B company while in F-1 status.

While you're on an H-1B visa, look into your alternatives as soon as possible and keep a close eye on current H-1B processing timelines, because it's much quicker to switch to a marriage-based residency permit if you still have time on your visa.

What About if the Situation of the Sponsoring Partner Changes?

Green Cards based on marriage to a United States Citizen can be acquired more quickly and readily than Green Cards based on marriage to a permanent resident. Therefore, if the spouse of an H-1B is eligible to apply for United States Citizenship, they should do so as soon as possible. Citizenship can take about 8-12 months to be granted so it’s a good idea to get a head start on the process. Keep in mind that the Green Card holder’s citizenship application can run in parallel with the marriage-based Green Card application of the H-1B visa holder. If the Green Card-holding spouse becomes a United States Citizen before the marriage interview, the case can be upgraded to get it on the faster track if a visa number was available to them when they first applied for the case under the F2A category. 

Marrying a US citizen while holding an H1B visa can pave the way for pursuing permanent residency through the adjustment of status process. This transition entails shifting from a temporary work visa to securing a green card, all based on the strength of your marital relationship which is why it’s critical to have your case professionally prepared to avoid any mistakes or delays.

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.

You can call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation.