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Foreign national marrying US citizen

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dustinthewind

Junior Member
What is the name of your state (only U.S. law)?
Pending adjustment of status applicant from H1B to B2 who resides in Chicago, IL

Hello,
I was on H1B for about two years. But due to the recent layoff, I left the firm in December 2008. My last date of employment is on 12/10/08. I was trying to find another job in order to transfer my H1B employment visa within 30 day period. However, due to the holiday season, I didn't find any match before the 30 day expired. I did filed the I539 to request a change of nonimmigration status from H1B to B2 on 12/30/08 and received the case receipt from USCIS with a date of 1/2/09. Besides, my fiance is in the process of applying for naturalization. He is scheduled to be interviewed on 2/18/09. And we are planning to get married anytime so that I could file the application for a greencard thru marriage. My questions are noted below:

1) What is the best time for us to get married? Before he gets his citizenship or after?
2) What documents do I need to get married in US legally? I have a birth certificated notarized from my home country in the language from my home country and in English.
3) Which state is the fastest and easiest to get married?
4) I filed the I539 to California service center. Currently the processing time for my case is 3 months. If we get married and my fiance gets his citizenship before my case gets approved or denied, can we file the application for a green card for me? Since I would not have any independent nonimmigrant status by that time, what should I put on the application form?
5) Since I filed the I539 20 days after I left my previous firm, would this be considered overstay? Would this have any impact on my future application for a green card or the ability to travel internationally while the permanent residence petition is pending?
6) How long does it usually take to get the employment authorization document and advance parole once I file the permanent residence petition?

I would really appreciate your advice on any of the above questions!!!What is the name of your state (only U.S. law)?
 


evcalyptos

Senior Member
What is the name of your state (only U.S. law)?
Pending adjustment of status applicant from H1B to B2 who resides in Chicago, IL

Hello,
I was on H1B for about two years. But due to the recent layoff, I left the firm in December 2008. My last date of employment is on 12/10/08. I was trying to find another job in order to transfer my H1B employment visa within 30 day period. However, due to the holiday season, I didn't find any match before the 30 day expired. I did filed the I539 to request a change of nonimmigration status from H1B to B2 on 12/30/08 and received the case receipt from USCIS with a date of 1/2/09. Besides, my fiance is in the process of applying for naturalization. He is scheduled to be interviewed on 2/18/09. And we are planning to get married anytime so that I could file the application for a greencard thru marriage. My questions are noted below:

1) What is the best time for us to get married? Before he gets his citizenship or after?
2) What documents do I need to get married in US legally? I have a birth certificated notarized from my home country in the language from my home country and in English.
3) Which state is the fastest and easiest to get married?
4) I filed the I539 to California service center. Currently the processing time for my case is 3 months. If we get married and my fiance gets his citizenship before my case gets approved or denied, can we file the application for a green card for me? Since I would not have any independent nonimmigrant status by that time, what should I put on the application form?
5) Since I filed the I539 20 days after I left my previous firm, would this be considered overstay? Would this have any impact on my future application for a green card or the ability to travel internationally while the permanent residence petition is pending?
6) How long does it usually take to get the employment authorization document and advance parole once I file the permanent residence petition?

I would really appreciate your advice on any of the above questions!!!What is the name of your state (only U.S. law)?
1- The timing of your marriage won't matter for this purpose.
2- Depends on each individual county.
3- Las Vegas NV has a reputation...

6- If you file your I-485 + I-765 when you're eligible (married to a citizen.. post oath remember) the EAD takes 90 days and the AP 60 days.
 

dustinthewind

Junior Member
Thanks for the answer.

My fiance is scheduled to take the interview on 2/18/09. We are planning on getting married before that. Does the timing matter for the overstay question?

Thanks again!
 

evcalyptos

Senior Member
Thanks for the answer.

My fiance is scheduled to take the interview on 2/18/09. We are planning on getting married before that. Does the timing matter for the overstay question?

Thanks again!
I want to make sure you understand that the interview is not the same as 'becoming a citizen'.
After the interview, if he is recommended for approval, a supervisor has to sign off and then an Oath Date has to be scheduled. The candidate does not become a US citizen until the Oath Ceremony.

In some offices, they do same-day oath ceremonies. In others, the wait can be months.

If you choose to go out of status, you might want to have an idea of how long that will be for.
 

dustinthewind

Junior Member
My understanding is I am not considered as overstay (unlawful presence) as my I-94 is still valid until 9/30/2009 even though I was terminated with my previous employer and I was out of status.

Besides, I have filed I539 to request a change of status from H1B to B2 on 12/30/08. The case is pending approval until about 3 months later. During the wait time before B2 is to be approved or denied, I can legally stay here. Am I missing anything here? If so, please correct me. Thanks a bunch!
 

evcalyptos

Senior Member
My understanding is I am not considered as overstay (unlawful presence) as my I-94 is still valid until 9/30/2009 even though I was terminated with my previous employer and I was out of status.

Besides, I have filed I539 to request a change of status from H1B to B2 on 12/30/08. The case is pending approval until about 3 months later. During the wait time before B2 is to be approved or denied, I can legally stay here. Am I missing anything here? If so, please correct me. Thanks a bunch!
You notice that I didn't address those questions initially. On purpose. I don't want to answer incorrectly.
 

dustinthewind

Junior Member
Ok. So anyone please clarify on the overstay question (out of status vs. invalid immigration status vs. unlawful presence)? My I94 is still valid until 9/30/09. Am I considered legal present in the states till that time even though I lost my H1B status and my request for change of change from H1B to B2 is pending approval and there was 20 day gap from the last day of employment and the day I filed I539?

Thanks again!
 

ImmigAttyLana

Senior Member
Most likely the change of status will not be approved since it was filed after you fell out of status (you are not unlawfully present if your I-94 is valid but you are not eligible for change of status, extension of stay if you are not in valid status). Unless this is mistakenly overlooked by USCIS, as happens from time to time, it would be denied.
 

realicious

Junior Member
1) If you are ready, you may get married right now. You don't need to schedule your marriage around your fiancee's citizenship test unless he is not likly to pass his citizenship.
2) It depends on where you are getting married. So inquire within the county where you live. Your translated birth certificate is good to be used when you are filing for your greencard and it might as well be needed when you get married.
3) Most of counties (in any states) require for you to "apply" for marriage and wait 24 for 48 hours before actual ceremony (or signing of decree). So, inquire this where you are to be married.
4) Your Last day of employment was on 12/10 and you applied for your change of status (COS) on 12/30. As Lana pointed out your application might be denied. Unless USCIS requests that you come before USCIS district office to sign a voluntary departure document, you would have no problem filing for your greencard in later day. - What you might wanto do right now is to get married and be petitioned (filing only I-130), just to be on safe side. If your I-130 is approved (this might take 3~6 months) your I-539 denial could be saved in some way.
Unless USCIS prevents you (because of a denial of I-539, for exemple) from adjusting your status after your "husband" becomes citizen your overstay since 12/10 would be 'forgiven' since you are filing your adjustment of status based on a marriage to US citizen.
- IF you do not have any independent nonimmigrant status by the time you are filing for greencard put "none" on your application.
5) It would not have any impact on your application (based on a marriage to US citizen) for a greencard but you may not travel internationally while the permanent residence application is pending if you overstayed for more than 180 days. (Your overstay dates is counted from 12/11/2008 to filing date of I-485, if your I-539 is denied).
6) omitted
 
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dustinthewind

Junior Member
Thanks for the answers!

After some research online, looks like the oath would take place sometime in March. If I file I-130 right now as a spouse to a lawful permanent, these cases are backlogged long time ago. My question is: if I found a new job and the employer files a petition on my behalf for a new H1B when I was waiting for the change of status from h1B to b2 to be approved, would this take care of my problem and would the application for a new H1B likely to be approved?
 

ImmigAttyLana

Senior Member
Possibly but most likely it would not be approved as a change of status/extension of stay but would be approved for consular processing since you are not in status at the time it was filed.

The question is really, do you have an employer who is offering you a position or not? If not, then you are just asking theoretical questions that have no basis in reality and if your fiance will be naturalized within a matter of 2 months then you just need to wait until you can file the I-130 and I-485 concurrently and at the same time apply for your employment authorization document on the basis of that filing and you would be much more marketable to any employer with an uncondidtional employment authorization than with a H-1B hassle for many employers.

If you do have a ready and willing employer at this time, then you do not need to be so overly concerned with when your fiance will be naturalized since you would just have the employer file the H-1B petition on your behalf and wait for the approval (which may take several months unless it is filed as premium processing). Then depending on how it is approved, you would either have your status changed automatically (if the USCIS overlooks the out of status time) or for consular processing, which means you would have to depart and reenter.
 

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