Please advise: H1B, OPT or AOS
 

Hi all!!

I've found some great info on the Forum but am still unable to figure out the best path for me. I've been in and out of the States on an F-1 (student) visa since the past five years. I completed my Bachelor's in 2007 and am now on track to finish my graduate studies by May 2010. My girlfriend (USC) and I, both 25, have happily decided to get married very shortly. Meanwhile, I have been offered an excellent job beginning June 2010, immediately following my graduation. The employer is willing to sponsor me for an H1B visa. As I see it, I have three options:

1. Get married immediately and apply for AOS. However, there is a danger that I may not receive the work permit in time to start my job in June. Furthermore, my girlfriend is unemployed and we would have difficulty with the Affidavit of Support.

2. Proceed with the H1B sponsorship. In this case I suppose I should not get married since the H1B is a non-immigrant visa and marriage may become grounds for denial.

3. Go for the OPT which essentially extends my F-1 status. But here again if we get married I may not be eligible since my F-1 becomes invalidated.

Would it be wise to use the OPT path and then get married (after June 2010) and apply for AOS? I would then also be in a position to demonstrate sufficient income. Would this be ethical? Would the EAD I receive under the OPT remain valid after I get married?

My potential employer has asked me for confirmation (asap) and also whether I need them to sponsor me.

Thanks for any advice.
Dave

Re: Please advise: H1B, OPT or AOS
 

It usually takes only 60-90 days to get employment authorization once the AOS is filed... so, if you marry "immediately" and file shortly thereafter, you'll be fine.


Then you'll need a joint sponsor... any USC or PR, over age 18, and living in the US. It can be anyone at all.


No, it won't be grounds for denial... but you can't get the visa while you're in the US... so that means a trip home prior to getting the visa.


Again, no.


No - that's a complete waste of time and energy. It would be wise to marry ASAP and file for AOS immediately thereafter. Not only is that your best course of action, it's also the easiest.

Ian

Re: Please advise: H1B, OPT or AOS
 

Thanks Ian. I was not aware that one has to leave the country for the H1B. Maybe an OPT does not have to leave since it's an extension of his current job. Anyhow, the AOS sounds good if a work permit takes 60-90 days. I just want to make sure before informing my potential employer that I don't need a sponsorship. Thanks again

Re: Please advise: H1B, OPT or AOS
 

If you time it right, you can do just about anything you want. You can get married and file for AOS while you're still in school, so by the time you graduate, you'll likely already have permission to work... probably need to file by the beginning of February. That'd be good news for a prospective employer also... cheaper for them (since they don't need to fork over the $$ to sponsor you), and if things fall through, you can still get work wherever else you want. Having an EAD is much better than being tied to a specific employer through a work visa.

Ian

Re: Please advise: H1B, OPT or AOS
 

UPDATE WITH POTENTIAL SNAG
After thoroughly weighing all options we decided to follow the AOS path but have now run into a potential snag. Here is the latest:

- We got married in December.
- Prepared all the paperwork including i-864, i-765, i-693, i-485, i-130, i-131 and g-325.
- Found a suitable USC joint-sponsor who has filled out the i-864 and provided relevant documents.
- I have submitted in writing my acceptance of the job offer to commence in June, 2010.
- I informed my future employer of my situation and told them that at this point in time I do not need a sponsorship.

The problem:
My wife was naturalized as a child 15 years ago. We just received her naturalization certificate (NC) from her parents. Apparently she had never needed it until now. The certificate is signed by her father. Her date of birth on the certificate is incorrect. We have her original birth certificate and her US passport with the correct date of birth. We can’t understand how the passport has the correct date, and her parents also have no explanation.

Now, although the i-130 and i-864 do not specifically ask for submission of the NC, the instructions do mention that a copy of this document should be submitted as proof of citizenship. I checked with a lawyer who said that a copy of her passport was all that was needed.

My research shows that a correct version of the NC can be obtained through submission of form n-565 but it generally takes more than 6 months to get the revised document.

I wonder whether it would be advisable to fall back on the OPT and simultaneously submit the n-565. We could then apply for AOS after we receive the correct version. If we apply for AOS right away and the application is held up, is there a risk of being denied the EAD? I don’t want to get into a nightmarish situation where I am not allowed to earn a living in the US after graduating. We have enough savings to get by for another 6 months or so (including tuition and all other expenses).

Any advice would be really appreciated.
Dave

Re: Please advise: H1B, OPT or AOS
 

Passport is enough.

Re: Please advise: H1B, OPT or AOS
 

I agree with henryh... her passport *IS* proof of citizenship. The I-130 instructions are not cumulative. You do not need a copy of the birth certificate *and* a copy of the natz certificate *and*... Any one document from #1-4 on the list is fine... but if you don't have any of those, then you need #5-6.


Since you ask, don't change your plans! :) When dealing with US immigration, apply Occam's Razor.

Ian

Re: Please advise: H1B, OPT or AOS
 

Thanks Henryh and Ian. That gives us great comfort. I think that we'll go ahead and file the AOS papers and treat the n-565 (correction to NC) as a separate issue. I love the Occam's Razor advice!!

Dave

Re: Please advise: H1B, OPT or AOS
 

UPDATE

Latest : I have the actual green card in hand!! Thanks to all on this forum and especially Ian. I found the USIS to be the most efficient government agency one can imagine! We sent in complete application package on Feb 22. Routine followed. The interview was scheduled for April 21 at 11:00 a.m. Reached the immigration office at 10:30. Interview started earlier than schedule and was over by 10:55. I was told to expect green card in 3 weeks and not to expect the EAD or AP. Returned home next day. Letter was already waiting for me which stated that I should expect the green card in 3 weeks. Received the card 9 days after interview on April 30!!!

Just thought that there may be some lessons for others from my case.

THANKS AGAIN!!

Re: Please advise: H1B, OPT or AOS
 

Congratulations, and Welcome to America! :)