Ned Franklin

My fiance and I had plans to marry this fall, but she just got laid off! I'm a US
citizen and she's here on H1-B. She's not so confident that she can find another job.
It seems that our options are:

1) Marry quickly and apply for an adjustment of status.
2) Marry in the fall then apply for an adjustment (she'd be out of status for
many months)
3) Have her return to her country and apply for a K1 visa.

Questions:
a) If we went with option 1 (marry quickly), will that appear suspcious to the INS?

b) If we went with option 2 (marry as planned) then are we risking anything by having
her be out of status for 6 months?

c) Is there a web page that describes how long it takes the INS to process an
adjustment? (I saw the web page for *all* INS adjudication, but not specifically
for adjustments).

Our primary concern is to remain together (we've been living together for 2.5 years),
but it would be good for her to be able to get a job too.

Any advice and info is appreciated.

-- Hopeful in the northeast US

Andy Platt

She would *not* be out of status. INS confirmed last year that H-1B stay is valid to
the expiry of the I-94 even if the alien has to leave their job.

I would do option 1 or 2; no point in option 3. Perhaps you could have a small civil
wedding now so she could file and get employment authorization so she could work
anywhere and carry on with plans for a bigger ceremony in the fall?

Andy.

--
I'm not really here - it's just your warped imagination. "ned franklin"
<[email protected]> wrote in message
news:[email protected]...
    > My fiance and I had plans to marry this fall, but she just got laid off! I'm a US
    > citizen and she's here on H1-B. She's not so confident that she can find another
    > job. It seems that our options are:
    >
    > 1) Marry quickly and apply for an adjustment of status.
    > 2) Marry in the fall then apply for an adjustment (she'd be out of status for many
    > months)
    > 3) Have her return to her country and apply for a K1 visa.
    >
    > Questions:
    > a) If we went with option 1 (marry quickly), will that appear suspcious to the INS?
    >
    > b) If we went with option 2 (marry as planned) then are we risking anything by
    > having her be out of status for 6 months?
    >
    > c) Is there a web page that describes how long it takes the INS to process an
    > adjustment? (I saw the web page for *all* INS adjudication, but not specifically
    > for adjustments).
    >
    > Our primary concern is to remain together (we've been living together for 2.5
    > years), but it would be good for her to be able to get a job too.
    >
    > Any advice and info is appreciated.
    >
    > -- Hopeful in the northeast US

Rita

Well if you want to be together than don't allow her to leave the country. No INS
will not be suspicious. What would cause them to be suspicious. You two have been
living together so you decided to make it permanent. No big deal.

As for timeline, no one can tell you that without knowing what INS office you will be
dealing with it. It varies from office to office, from state to state, and even from
office to office within the same state.

Rita

[email protected] (ned franklin) wrote in message
news:<[email protected]. com>...
    > My fiance and I had plans to marry this fall, but she just got laid off! I'm a US
    > citizen and she's here on H1-B. She's not so confident that she can find another
    > job. It seems that our options are:
    >
    > 1) Marry quickly and apply for an adjustment of status.
    > 2) Marry in the fall then apply for an adjustment (she'd be out of status for many
    > months)
    > 3) Have her return to her country and apply for a K1 visa.
    >
    > Questions:
    > a) If we went with option 1 (marry quickly), will that appear suspcious to the INS?
    >
    > b) If we went with option 2 (marry as planned) then are we risking anything by
    > having her be out of status for 6 months?
    >
    > c) Is there a web page that describes how long it takes the INS to process an
    > adjustment? (I saw the web page for *all* INS adjudication, but not specifically
    > for adjustments).
    >
    > Our primary concern is to remain together (we've been living together for 2.5
    > years), but it would be good for her to be able to get a job too.
    >
    > Any advice and info is appreciated.
    >
    > -- Hopeful in the northeast US

Ned Franklin

    > She would *not* be out of status. INS confirmed last year that H-1B stay is valid
    > to the expiry of the I-94 even if the alien has to leave their job. Andy.

Andy, that is earth-shattering news! Could you point to any official statement,
online or otherwise, that can substantiate this? We've been hearing from everyone,
including lawyers, that my girlfriend has 60 days from the lay-off date to find
another job or leave the country. The expiration date on her I-94 is later this
year, so if what you're saying is true, that gives her a LOT more than 60 days to
remain in status.

Thanks,

-ned franklin

Ned Franklin

    > No INS will not be suspicious. What would cause them to be suspicious. You two have
    > been living together so you decided to make it permanent. No big deal. Rita

I thought they might think, "Now that she's laid off you're getting married in a
hurry just so she can stay." And therefore deny the adjustment application. Their
suspicion would be partially justified, since our original plan is to marry in the
fall, not right now. But it is also true that we have been living together for 2.5
years and we want to make it permanent.

Thanks,

-ned franklin

Andy Platt

I've had a brief look and couldn't find it. There were a couple of examples where it
was alluded to in alt.visa.us too but again, no reference. The basis of it was that
everyone thought you had ten days past the end of your job but the law doesn't say
that - it says 10 days past the date of the expiry of the I-767 so INS said that you
wouldn't fall out of status.

In practice I'm not sure it matters for you guys. It seems that the best bet is to
have a quick marriage, file so she can get general employment authorization and then
have a bigger ceremony later.

One thing to do *not* need to be concerned about is any appearance that you got
married so she can stay in the country. The only thing they look for is a genuine
marriage - the reason doesn't matter. Genuine couple, genuine marriage, no issues.

Andy.

--
I'm not really here - it's just your warped imagination. "ned franklin"
<[email protected]> wrote in message
news:[email protected]...
    > > She would *not* be out of status. INS confirmed last year that H-1B stay
is
    > > valid to the expiry of the I-94 even if the alien has to leave their
job.
    > > Andy.
    >
    > Andy, that is earth-shattering news! Could you point to any official statement,
    > online or otherwise, that can substantiate this? We've been hearing from everyone,
    > including lawyers, that my girlfriend has 60 days from the lay-off date to find
    > another job or leave the country. The expiration date on her I-94 is later this
    > year, so if what you're saying is true, that gives her a LOT more than 60 days to
    > remain in status.
    >
    > Thanks,
    >
    > -ned franklin

Andy Platt

Here's something; it's not what I originally saw. You'll see the issue isn't cut &
dry though

http://shusterman.com/apr01.html#3

Andy.

--
I'm not really here - it's just your warped imagination. "Andy Platt"
<[email protected]> wrote in message news:[email protected]...
    > I've had a brief look and couldn't find it. There were a couple of
examples
    > where it was alluded to in alt.visa.us too but again, no reference. The basis of it
    > was that everyone thought you had ten days past the end of
your
    > job but the law doesn't say that - it says 10 days past the date of the expiry of
    > the I-767 so INS said that you wouldn't fall out of status.
    >
    > In practice I'm not sure it matters for you guys. It seems that the best
bet
    > is to have a quick marriage, file so she can get general employment authorization
    > and then have a bigger ceremony later.
    >
    > One thing to do *not* need to be concerned about is any appearance that
you
    > got married so she can stay in the country. The only thing they look for
is
    > a genuine marriage - the reason doesn't matter. Genuine couple, genuine marriage,
    > no issues.
    >
    > Andy.
    >
    > --
    > I'm not really here - it's just your warped imagination. "ned franklin"
    > <[email protected]> wrote in message
    > news:[email protected]...
    > > > She would *not* be out of status. INS confirmed last year that H-1B
stay
    > is
    > > > valid to the expiry of the I-94 even if the alien has to leave their
    > job.
    > > > Andy.
    > >
    > > Andy, that is earth-shattering news! Could you point to any official statement,
    > > online or otherwise, that can substantiate this? We've been hearing from
    > > everyone, including lawyers, that my girlfriend has 60 days from the lay-off date
    > > to find another job or leave the country. The expiration date on her I-94 is
    > > later this year, so if what you're saying is true, that gives her a LOT more than
    > > 60 days to remain in status.
    > >
    > > Thanks,
    > >
    > > -ned franklin

Ned Franklin

    > Here's something; it's not what I originally saw. You'll see the issue isn't cut &
    > dry though
    >
    > http://shusterman.com/apr01.html#3
    >
    > Andy.

I found a great article about this (one's status after being laid off) at Wired.com:

http://www.wired.com/news/politics/0,1283,42439,00.html

"The visa holder can stay in the country until the date on the entry ticket in the
passport," said Schmidt [ an INS spokesperson ].

An H-1B visa, which a foreign employee must acquire after accepting a job in the
United States, is valid for three years. If a visa holder loses his or her job
before that time, the visa remains valid, but the holder is considered to be "out
of status."

Being out of status technically means the employee is remaining in the country
despite no longer fulfilling the obligations for being granted the visa. But that
still doesn't mean they would be in the United States illegally.

The article indicates that the INS did not, at the time the article was written
(Mar 2001), have a clear policy. Nor is the law very clear about what is supposed
to happen.

My understanding of the matter, so far, is that "out of status" is not a concept
defined by law but defined ad hoc by the INS, in order to mend the badly-written law.
I mean, the law fails to define what should happen when an H1-B holder gets laid off,
so the INS invented this concept of "out of status," which is not quite as bad as
"illegal". As far as I can see, the only teeth this concept has is when the person
applies for another visa -- the INS may use it against the applicant.

So, the bottomline, it seems to me, is that if the alien wants to have a
long-term relationship with the INS, it is best to not go "out of status," even
if it's not illegal.

-NF

Ned Franklin

I found it!

INS Memo on Unlawful Presence -- September 19, 1997

Unlawful presence does not begin to run from the date of a status violation
(including unauthorized employment). Unlawful presence for a nonimmigrant may begin
to accrue before the expiration date noted on the I-94...

http://americanlaw.com/unlawfulmemo2.html

One must keep in mind that although "unlawful presence" doesn't start until the
expiry of I-94, "status violation" begins earlier, and may have consequences.

-NF