Change Status from H-1B Visa to Marriage-Based Green Card
Adjustment of status from a H-1B visa to a marriage-based Green Card can vary depending on whether your spouse is a U.S. citizen or a permanent resident (Green Card holder). Let’s look into the details in this article and learn about I-130 for application, I-485 for adjustment of status, I-131 for travel permits and I-765 for work permits.
I. What is a H-1B visa?
Generally, an H-1B visa is given to individuals who are in a specialty occupation, certain occupation relating to the Department of Defense (DOD), or services as a fashion model of distinguished merit or ability.
These H-1B statuses are dual intent and allow the H-1B visa holder to arrive and work in the United States without being restricted from having an intent to permanently reside in the United States.
II. What are the steps when a H-1B visa holder marries a U.S. citizen?
While processing times can vary depending on the various field offices, H-1B visa holders marrying a U.S. citizen can estimate a 10-13 month timeframe for a marriage-based Green Card.
When a H-1B visa holder marries a U.S. citizen, the H-1B holder should file the following:
- Form I-130 (Petition for Alien Relative) to apply for marriage-based Green Card
- Form I-485 (Application to Register Permanent Residence or Adjust Status) to apply for adjustment of status within the U.S.
- Can be filed concurrently with the Form I-130
While awaiting for the approval of the marriage-based Green Card, it is highly suggested that the marriage-based Green Card applicant also apply for the following:
- Form I-131 (Application for Travel Document)
- To apply for travel permits
- Allows the marriage-based Green Card applicant to travel outside of the United States during the Green Card application pending without being deemed to have abandoned the process
- Form I-765 (Application for Employment Authorization)
- To apply for work permits (Employment Authorization Documents)
- Allows the marriage-based Green Card applicant to work legitimately within the United States with during the Green Card application pending without being deemed to have abandoned the process
- Form I-765 can be submitted separately with Form I-485 but when they are submitted together the filing fee for Form I-765 is waived
III. What are the steps when a H-1B visa holder marries a Green Card holder?
While processing times can vary depending on the various field offices, H-1B visa holders marrying a Green Card holder can estimate a 29-38 month timeframe for a marriage-based Green Card.
When a H-1B visa holder marries a Green Card holder, the H-1B holder should file the following:
- Form I-130 (Petition for Alien Relative)
- Form I-485 (Application to Register Permanent Residence or Adjust Status)
- Must wait until a visa number is approved and authorized to apply for adjustment of status
- Only spouses of U.S. citizens will receive a visa number immediately
While awaiting for the approval of the marriage-based Green Card, it is highly suggested that the marriage-based Green Card applicant also apply for the following:
- Form I-131 (Application for Travel Document)
- To apply for travel permits
- Allows the marriage-based Green Card applicant to travel outside of the United States during the Green Card application pending without being deemed to have abandoned the process
- Form I-765 (Application for Employment Authorization)
- To apply for work permits (Employment Authorization Documents)
- Must wait to file with Form I-485, once a valid visa number is approved (only spouses of U.S. citizens will receive a visa number immediately)
- Form I-765 can be submitted separately with Form I-485 but when they are submitted together the filing fee for Form I-765 is waived
IV. Why should you file a Form I-765 (Application for Employment Authorization)?
Whether you file the Form I-765 (for Employment Authorization Document) immediately (when marrying a U.S. citizen), or waiting to file once a valid visa number is provided (when marrying a Green Card holder), H-1Bs are highly encouraged to apply for the Form I-765 for the following reasons:
- When filing along with a Form I-485, the filing fee for Form I-765 is waived
- Will allow the H-1B holder to continue to work in the United States after H-1B has expired
- The work permit is not affected the outcome of the Green Card application
V. What happens when a H-1B status expires before receiving a marriage-based Green Card?
Typically H-1B visa holders will need to leave the United States after the sixth (6) year of their H-1B status. Although they may re-apply for visas in their home country, H-1B visa holders still must return to their home country once they reach expiration.
It is highly recommended that H-1B visa holders plan their marriage-based Green Card application timelines ahead of time to complete the application processing while still residing within the United States. If the H-1B visa expires, the H-1B visa holder will have to return to their home country and continue the Green Card application process under consular processing. At this point, the H-1B visa holder can only return to the United States and continue working after receiving a valid Green Card.
In order to know estimated processing time of Green Card applications, Lawfully USCIS Case Tracker provides personalized prediction for that based on the AI machine learning algorithm. Download and try Lawfully USCIS Case Tracker app to get real-time USCIS updates and information on the expected decision date.
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