Complex H1B to GC process

[jahcure]

hello,

I have a challenge here for you brilliant folks. Based on reading some of the previous responses on other posts i think this one is unique.

Currently my spouse and I are both holders of H1B visas. She's 4 years in and i am 2 years in.

Since she graduated school she has been employed by company A and this has been her sole place of employment from OPT->H1B (3 years) ->H1B (second term and 1 year in).

I was employed at company B for 3 years (opt->opt STEM extension-> 1 year H1B). I subsequently left company B and am now employed at company A, the same as my spouse.

They are in the process of filing a green card petition for me and she would be listed as a beneficiary on my application.

Here's the question: Since her h1b duration will obviously be expired before we receive the green card, is there any avenue for her to continue employment while it's being processed? I've seen everywhere that the spouse must stop working when their H1B expires, but since we are working for the same company and the company IS filing for us both (her as my beneficiary) could she then continue extending as a result?

** You may now be asking why didn't they just file for her, but as it was explained to her, since she gained all her working experience at that one company, they will have to disregard all that she's aquired (numerous promotions, masters, various certifications and most importantly 7 years working experience) and pit her against entry level applicants when filing her GC application, which would make her chances of success quite impossible since anyone coming out of school would be "qualified". Basically they would not be able to file based on her current skillset and growth, since it was all aquired here.

But they can file mine, since i earned most of my experience at another company and transfered in.

We are both engineers if that counts for anything.

This is the jist of things...thanks for any assistance.

[pontevecchio]

"They are in the process of filing a green card petition for me and she would be listed as a beneficiary on my application"

She would be listed as your wife in the application. That does not make her a beneficiary. It only means that she can apply for AOS if appropriate at a suitable time . The obvious thing to do would be for her to start leveraging her credentials with a different company.

[Belle]

Your wife needs a consultation with a different lawyer. It seems that her situation is not that bleak - she should be able to use her masters, ect. But that's actually a different question whether she will be able to file EB2 vs EB3. What she needs now is the ability to continue working. There are two ways - 1) you will be able to file I-485s soon and she will get an EAD or 2) she will get her own immigration case, and will extend her H1 based on that. She can't extend H1 based on your filing because her eligibility there is solely based on the fact of marriage. So, she needs her own immigration case. Even if it is EB3, she will still be able to exptend her H1 until I-485 is filed.

[jahcure]

Hi Guys,

thanks for the advice (though it was exactly the answer that i didn't want to hear). In that vein maybe you all could give some more positives.

We have gone ahead and contacted a lawyer, but won't get consultation until Thursday...so these will be quite a nerve wrecking week. Today i had a pretty unproductive day, trying to research that situation that we are in.

Belle, you said the situation isn't that bleak and i'm holding onto that. If we cannot both work, things will be extremely horrid. We just bought a house and are expecting our first in 4 months....we've been putting off starting a life for so long and waiting for stability and when this whole immigration thing seemed to finally smooth out...we are back in a quandry again.

So back to the matter at hand.

1) it was mentioned that "i will be able to file the i-485 soon..." What's the typical wait time before that document is in play? My wife will be on H1B until august 2014, and they are only starting the advertising process for me this week. Is it worth just not stressing since the i-485 will be filed before she's out the H1B status or even if it's shortly after, we can deal with that.

2) Is it possible for her to be able to file and stay with the same company? She would prefer to stay considering all the time she's been there and how much she's grown in the company. They said they cannot use her experience gained at the company to file for her and this seems to possibly include her masters (since they reimbursed her in gaining it while she worked there)

If anything else comes up during any responses i will clarify, and i will also be sure to share information we gain from our lawyer in the coming week.

thanks again!

[Belle]

How soon you will be able to file I-485 depends on your category and country to birth. I should have probably stated "if you will be able to file soon". In certain cases you may be able to file very soon, and in some you are facing 6-10 year wait. You need to ask your attorney. In fact, your wife should schedule a separate consultation and insist that her own case is filed. It is not up the immigration lawyer to decide whether she will ever be able to file based on your petition simply because you are currently married.

Where she works does not matter here. After 6 years, she would not be able to extend her H1 with any employer. With an approved I-140 (no matter the category), she will be able to extend her H1 with any employer.

Any discussion on the category your wife will be filing it is irrelevant - the goal is to preserve her ability to work, not to to file faster.