Marriage / Travel while AOS is in process

[bsubram2]

This is for my sister for whom we are considering a marriage proposal from a boy in the US. The boy is currently on H1B and AOS was filed in Feb 2012 with a priority date of March 2009. He got a biometrics call and also received a EAD although he is not using it and is still working with H1B status. Since filing for AOS the priority dates have retrogressed. Questions are:-

Scenario 1: Assuming AOS does not get approved before marriage

1. While AOS approval is pending can he travel to India for marriage? Does the fact that his biometrics are done have a bearing?

2. Assuming my sister needs to get a H4 to travel back with him to the US, is there any "perceived bias" towards rejecting H4 visa applications whose spouse's AOS is in process?

3. Once in the US can my sister's name be added to his GC petition. If so can it be added right away or only when the priority date becomes current again. Once added, would it mean both get GC at same time?

4. If the boy wants to change jobs using his EAD before his AOS is approved, what happens to my sister's H4 status at that point? Would she be forced to move to a different visa status such as F1?

Scenario 2: Assuming AOS gets approved before marriage

1. What is the likelihood of his AOS getting approved within the next year given where the priority dates are today.

2. What are my sister's options for traveling to the US in this scenario? I assume H4 is not an option since the spouse's H1 is invalidated once AOS is approved

3. Can my sister's name be added to the GC petition after the AOS is approved? We heard there is a grace period to get the spouse added even after AOS is approved but are not sure.

thanks,

Bala

[tusharvk]

you might read AC21 FAQs on murthy and educate yourself.

[Nivas]

Scenario 1 :

A1 : Biometrics a just a step in the process and has no bearing on the status. He can travel to India on H1B, Assuming he has an unexpired H1B Visa or will get a H1B visa while he is in India. It will always be best to have Advance Parole just in case if his petition adjudicates while he is out of the country

A2 : H1 and H4 are dual intent so there shouldn't be any Bias. But as you know no one guarantees a visa to anyone in any category.

A3 : Your sister can file her I-485 when the priority date is current again

A4: If he changes to EAD your will sister's H4 will no longer be valid. H4 is dependent on a valid H1B.

​ Scenario 2 :

A1 : No one knows at this point.

A2: I'm not entirely sure about this but there will be years of wait for her to come into U.S unless she has her own H1B or F1. There is not really a good option here.

A3: I have no idea of grace period.There is something called Following to Join that I don't know much about it. Hopefully someone with knowledge on this subject will chime in.

[Nivas]

It looks like following to join if you are married before getting your status adjusted not after. So for Scenario 2 / question 2, she doesn't really have a good option. There will be years of wait before she can join her husband unless she has her own H1B or F1 etc.

[Belle]

1. Yes and no. No issues here.

2. None.

3. There is no such thing as adding a name to a petition. She will file her own I-485. She may only do it when her (= his) priority date is current.

4. She will become out of status on H4. She will be in authorized presence until H4 date expires. She will need to talk to a lawyer on the best strategy with her status. F1 is one option. She may also file I-485 while out of status (H4 in particular) in some cases, but she need to know the specifics.

1. Hard to tell. Watch the visa bulletin.

2. She would need independent visa, like H1 or F1.

3. Again, no such thing as adding. If the marriage happens after his I-485 approval (there is no grade period), she is no longer a beneficiary of his employment petition. This means, once they are married, he will have to sponsor her as member of his family. If he is a permanent resident, this process will take 2-4 years.