The H-1B visa is a dual intent visa. Dual intent means that although it's a temporary work visa, U.S. immigration officials won't penalize you for changing your status to a green card while you're in the United States in H-1B status. This is good news for you as the spouse of a U.S. citizen or lawful permanent resident - you can apply for a green card through marriage and be on the pathway to U.S. citizenship. With the green card, you can work in the United States permanently, even after your sixth year of H-1B status. This article explains the process of applying for a marriage green card depending on your spouse's U.S. immigration status.
How to change status from H-1B to marriage green card if your spouse is a U.S. citizen
If your spouse is a U.S. citizen, it is much easier for you to obtain a marriage-based green card through adjustment of status. You will need to file Form I-130, called “Petition for Alien Relative” or the family sponsorship form, to first inform U.S. Citizenship and Immigration Services (USCIS) of your relationship with your spouse. Next, you will file Form I-485, which is the actual green card application form.
H-1B holders who are spouses of U.S. citizens are allowed to file these two forms simultaneously. This is called “concurrent filing.” It will reduce your green card processing time. You don’t have to wait for a visa number because USCIS considers you an immediate relative of your spouse. Visas for immediate relatives are automatically available - you won’t have to wait for a priority date.
Because green card processing can take a while, you might want to get a work permit or Employment Authorization Document (EAD) so you can work while you wait. You can apply for a work permit through Form I-765, which is free and will not affect the outcome of your green card application. Generally, after you submit Form I-765 with your green card petition, you will receive your work permit within 150 days. You won't have to maintain your nonimmigrant visa to work after filing both of your forms and receiving your work permit.
If your H-1B visa expires while your green card case is pending, and you don't have a separate EAD, you will have to stop working until you get work authorization. This is why it is a good idea to file for an EAD with your green card application so that you keep your eligibility to work even when you’re out of H-1B status.
You should also consider applying for an Advance Parole travel permit using Form I-131 in case you want to make a trip abroad while waiting for your green card. If your H-1B visa expires before you get a green card, you’ll need Advance Parole to signal to USCIS that you’re still interested in the green card and so that Customs and Border Patrol (CBP) can let you back into the country after your visit abroad.
How to change status from H-1B to marriage green card if your spouse has a green card
If your spouse is a green card holder, you will have a more complicated process to obtain a green card. You will have to file both Form I-130, the family sponsorship form, and Form I-485, the green card application, but you can't file them "concurrently." Instead, you will first file Form I-130 and then wait until you receive a visa number to file Form I-485.
Visa numbers are automatically available for spouses of U.S. citizens but not spouses of green card holders. There is a long waiting period for getting the visa number. You will likely have a wait time of around two years after filing your Form I-130 petition before you can file Form I-485.
Like spouses of U.S. citizens, you should file Form I-131 to get a travel permit before you travel outside of the United States. Otherwise, the government may consider you to have abandoned your adjustment of status application, and you will have to restart.
You can also apply for a work permit with your green card application, using Form I-765. However, you can only file Form I-765 with Form I-485, the actual green card application form. You cannot file Form I-485 with Form I-130. This means you have to wait until you receive a visa number to file for the work permit. Until then, you have to use your H-1B visa for work authorization.
If you reach the six-year maximum on your H-1B visa before you become eligible to apply for a green card, you will have to leave the United States and complete your immigrant visa or green card application process from your home country. This process is called "consular processing." Under this process, you can only return to the United States to work after USCIS issues your green card. This means it is essential to start your application for permanent resident status as soon as possible after you are married.
What happens if your spouse becomes a citizen?
If your spouse gains U.S. citizenship while you are applying for a marriage-based green card, you should notify U.S. Citizenship and Immigration Services (USCIS). It is faster for spouses of U.S. citizens to get a green card because they can file their green card application immediately, along with their work permit application. You can continue working in the United States with your work permit even if your H-1B visa has already expired.
If you have already left the United States, you should still notify USCIS about your spouse’s naturalization to decrease your wait time for your green card.
How long does it take to adjust status from H-1B to marriage green card?
The processing time for your immigration application depends on the U.S. Citizenship and Immigration Services (USCIS) service center to which you submitted your application. However, generally speaking, if you are married to a U.S. citizen, the entire process will likely take between 10 to 13 months. If you are married to a green card holder, the whole process will likely take around 29 to 38 months.
Can you change your status to marriage green card if your H-1B visa expires?
Generally, H-1B visa holders have to leave the United States after their sixth year and return to their home country for one year before reapplying for another H-1B visa. If your H-1B visa has already expired, immigration law requires you to leave the United States. You will have to use "consular processing" to get your marriage green card, even if U.S. Citizenship and Immigration Services (USCIS) has already approved your family sponsorship form.
It is sometimes possible to obtain another temporary visa, such as an F-1 student visa, when your H-1B visa expires, so you can avoid separating from your spouse. However, these visas aren't employment visas for foreign nationals, so you cannot keep working at your current employer.
Make sure to check your options with a lawyer as early on as possible to avoid any issues.
Changing status from H-1B to marriage green card can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!