nitram

My girlfriend and I have been a couple for eight years. I came to the US from Canada to live with her, as I qualified for TN visa status. Now I have an H1-B (first cycle, one year to go) and we want to get married.

The problem is, she just started a job on the West Coast, and I am back on the East Coast. While it is difficult being apart, she had to take this job because her area of expertise is not common, and jobs are scarce.

1. If we get married, are we supposed to be LIVING TOGETHER when we file our forms (for me to get EAC and residency, etc)?

2. Should we file in her state (CA) or mine (PA)?

3. Given that we have been a couple for so long (and that both our families are expecting marriage to happen at some point) and we have lived together for many years, shared expenses, been on trips and basically done all things couples do -- would our being married but not IMMEDIATELY co-habitating (we sure WANT TO BE together, but jobs are tough) be tolerated by the INS or reviewer?

4. Should we get married, file the paperwork right away (while I am still an H1-B), and then I quit my job to look for one in California? This is a worrisome alternative, as I feel that quitting my H1-B would jeopardize my status (we are not independently wealthy, either).

Any thoughts, advice or opinions?

Thank you.

Folinskyinla

Hi:

There is no requirement that you actually have to be living together. It may raise eyebrows and cause questioning, but it is NOT a legal requirement.

There have been examples on this board. "Hopelesslinks" lives in Kansas and her husband was leaving for a job assignment overseas and it was no problem. In fact, I recall that CIS actually expedited the case for them inasmuch as US hubby was working for the government.

Rete

To qualify the statement on Hopelessinks ... they are apart because her husband is in the Army and was deployed to Iraq. Not exactly the same scenario as the OP's either as they adjusted her status before he left the US.

BTW there was another poster on here I believe last year who adjusted status. He worked on one side of the country and she went to school on the other side. They were approved.

Noorah101

I'm another example. My alien husband's and my residence is in Phoenix, and that's where we filed his immigration paperwork. But because of his job, he had to go work in Los Angeles. I doubt it will be an issue at our upcoming interview. We have plenty of proof of co-mingled finances, insurance, utilities, pictures, marriage certificate...all the goodies. And if it does come up at the interview, we kept proof of all his flights to Phoenix and trips we took together, to show that we DO spend time together as much as possible.

Best Wishes!
Rene

nitram

Dear Folinskyinla,

Thanks for responding so fast.

Does the state of filing matter? Is one better than the other, or does it even matter? We would assume that, given she is the USC, that her state would be the one, but then we heard about a thing called "processing times."

Also, would you advise I maintain H1-B until EAC arrives?

I note you are near her location. Are you still practicing? If so, would you be interested in providing us with your contact details (offline)?

Very much appreciate your work on this forum. Thank you.

nitram

Oh, I'm sorry -- THANKS to all other responders as well! It is very encouraging to hear how others view this, and hear what you have to say.

Noorah101

You're welcome, nitram.

Folinskyinla doesn't take any work off this forum, but you can go to www.aila.org and look for another immigration attorney.

The only other advice I can give you is to file the paperwork where you intend to live more permanently...that way you won't have to deal with a change of address down the road when one of you moves "back home".

Best Wishes,
Rene

Folinskyinla

Hi Rete:

What is there to qualify? Her husband does have a paying job in which he had to live separate and apart from his wife. However, not only does Hopeless links have a green card, she is now eligible for naturalization!

Rete

Her AOS was before he left and she checked with her attorney and no she does not qualify for naturalization.

BTW it is Hopeless In KS ;-)

Folinskyinla

Hi:

The problem with 319(b) is that the law requires an intent by the spouse to take up residence abroad. However, 8 CFR 319.2(b)(3) excuses this requirement where the citizen "is employed abroad in an area of hostilities where dependents may not reside."

My understanding is that in the past, the INS interpreted this to excuse the requirement of living abroad. Or what would happen often is that spouse would live abroad but close the area of conflict. So, it might be possible for Hopeless to live with her parents in the UK and naturalize! I wonder how the dependent benefits would work on US bases in the UK?

hcj1440

As soon as they receive your I-485 filing (which would be filed at the same time as I-130, plus I-765 for EAD, and optional I-131 for Advance Parole), you will be in "pending adjustee" status which allows you to be here legally while your Adjustment of Status application is being processed. At that point you would be free to quit your H-1B without jeopardizing your immigration status. IOW, you do not have to maintain your H-1B until you get your green card through marriage, you just have to maintain it until you file for Adjustment of Status.

And since you mentioned you are not independently wealthy... EAD normally takes a few months to receive (though some have gotten it sooner, and some had to chase it down in person on the 91st day after filing). So if there are any financial concerns, you may want to wait until you get your EAD to quit your H-1B job, so that at least you have the security of being able to accept another job and not have to wait around for work authorization.