confusedgal123

Hi,

Really desperate for some advice, my relationship is falling apart because of the imigration status of my fiance. Really need some advice, and I have always been able to rely on this forum....

scenario:
fiance is in usa on H1B visa - and has filed for GC under EB3 category. I140 has been approved now waiting for the priory date to be current. Which may take years. Because his H1 visa was never stamped he cannot travel outside of usa.

In the meantime I am a UK resident and I could apply for him as my husband once we are married to come stay in uk on a 2-year visa.

Now the confusion:
- If he leaves USA and comes to the uk as my dependent, will that automatically cancel his GC application? His employer is happy to keep sponsoring him for GC even if he leaves the usa.
- Since he has no visa stampped for the H1 visa - if he came to uk, what is the best way to travel to usa regularly? eventually once his priority date is current he would like to settle in usa. He already has alot of ties and house in the usa.
- But in the meantime we dont want to be apart - which is why its so complicated. If there any way for him to be with me and travel back and forth to the usa without losing the GC status?
- also since he has been living in usa for last 10 years - can I apply for his uk dependent visa in usa? or does he need to go back to his home country?

Any advice would be greatly appreciated.
Thanks
Srab

hobbes79

Something isn't right with that. Talk to a lawyer... he'll answer your other questions.

If you marry him now and he's in the US on a legitimate H1 visa, I believe you could get an H4. That would allow you to live in the US as long as he has a valid visa, but you couldn't work. Again, more questions for a lawyer.

meauxna

The h-1B can go for 'visa stamping' any time. Why won't he leave the US?

ian-mstm

Sure he can... leaving the US is never an issue. If his visa is still valid, then all he needs to do is get his visa stamped on his return to the US. This is perfectly normal and happens all the time... I don't see what the issue is.

Ian

confusedgal123

thanks so much for responding....maybe I didn't explain it very well

"Because his H1 visa was never stamped he cannot travel outside of usa."

......when he was issued with the H1B visa - to get the visa stamped on his passport he had to go back to his home country - he never did that cause his lawyer said that there was a risk that sometimes they might refuse to issue the stamp.....and the lawyer said that its best to wait until he applies for the I485 and then he can apply for travel permission. That way there is no risk of the us embassy in his home country refusing him entry to usa.

Does this make sense or am I completely off track...
***
Q1. Am I correct in thinking that the best way would be for him to go back get his H1B stamped and then I can apply for him to get a dependent visa to uk either while he is in usa or in his home country?

That way he could still travel back and forth to uk and to usa without losing his GC status? Is there a time limit for him on how long he can be out of usa on h1b visa?

I would rather not move to usa right now as his dependent when I wont be able to work. If he was able to apply for his I485 I would have not thought twice, but leaving behind my job to have nothing to go to...isn't ideal at this stage when I have a mortgage to pay etc.

confusedgal123

Another question....someone else advised my fiance to apply for canadian GC - which is often quicker in processing times and it would mean he can travel to the usa without restriction. Is that true? sorry for my ignorance.

All we want is for him to be able to spend time in uk and usa - without jeopardising his chances of getting his american GC approved.

Really not sure what to do. Wish we knew when the I485 would become current - but thats not going to happen...

Sorry for waffling.....thanks for your patience..

srab

ian-mstm

He only needs to be outside the US... he doesn't need to go back to his home country. I didn't answer your other questions, because they are all rather convoluted ways to get around the H-1B stamp... which is quite easily solved.


Without a basis on which to apply (such as being sponsored for an employment visa by a Canadian company) this is useless.

Ian

Michael

Are you sure that is true in all cases for an H1-B to GC. I remember working with a guy (back in 1998) from India and he complained that he couldn't leave country during approximately the last year of the GC process. He had his wife (also from India on an H4) with him in the US so I'm wondering if he couldn't leave with his wife for some reason.

confusedgal123

Now I am confused..........

Q1. so can he leave the country before filing for I485 and still return to usa - that is on the assumption he gets the H1B visa stamped in his passport. Is that the most straight forward way? Or is there another way?

Q2. where else would he go apart from his home country to get the H1b stamped on his passport...

we heard some people go to canada....but there are some horror stories of people being stuck there for 3 months because of the security clearances taking long....

help please
srab

ian-mstm

Yes. Once the I-485 is filed, you run into "abandonment" issues if you leave the US without first filing for permission to travel. However, if the I-485 has not yet been filed, the H-1B visa is valid for travel.


Yes.


Canada, Mexico, Bahamas, Bermuda...


I've heard that some people get sick after getting a vaccination. Does that stop me from getting vaccinations? No, because for every sick person you hear about, there are millions who don't get sick. Same with immigration... I'm sure there are "some horror stories", but for every horror story you hear about, there are thousands who have no problems at all. Besides, your husband's security clearances are done... he already *has* the visa in his passport.

Ian

crg

The H1B is a classification which allows dual-intent. That means they can travel with a pending I-485 as long as they are in full compliance with their H1B status and have the normal documents that an H1B needs to enter. They don't need a parole letter even with a pending I-485.

I don't remember when if that has been in effect as far back as 1998 so it may have been different then.

confusedgal123

Thanks Ian,

I like your humour! - might repeat the same thing to my fiance and make him see some logic instead of chickening out of every time he hears something...

"he already *has* the visa in his passport" ---->> no he does not...he has it on paper not passport.....never got it stamped cause he never left the country!!!!! like i said he chickened out....

time for us to make a trip to the bahamas......I wish!!!

I think I get the gist of it........
srab

JCraigFong

First, we should be clear. It SOUNDS as if your fiancé did a Change of Status (COS). That is, he had one visa status and the attorney filed papers in the USA to have your fiancé's status changed to H-1. If so, then you are correct: he does not have the visa sticker -- they are about 3" x 4" these days and are stuck or pasted directly onto a blank page in one's passport. This is the VISA. If he did a COS, he would not have one of these; he would only have an approved I-129 H-1 petition and an I-94 with an expiration date.

Second, when someone approaches the border of the USA and asks to be admitted, one shows the relevant visa and assuming all is well, the border guard will FRANK the passport with a rubber stamp of some kind. This stamp shows the date that the alien was ADMITTED to the USA. The border guard will also place an I-94 arrival departure card into the passport.

Finally, The I-94 arrival-departure card issued on entry should have the STATUS in which the person is admitted and the expiration date of the authorized stay.

So: your fiancé has H-1 status, but no visa. If he travels outside the USA or contiguous territories, authorities will take the I-94 away upon departure. Your fiancé would thus have NO VISA on which to return. Remember: the approved I-129 petition is NOT a visa. Your fiancé would need to return to his home country, make an appointment, and appear at a USConGen to get the visa.

Can he use a USConGen in a third country? Possibly. I would NOT -- repeat NOT -- accept "everybody-does-it-and-I-did-it-too" as the green light to process in a third country. First, if an applicant is now or has ever been out of status, I would be very wary of processing ANYthing outside the USA, without the help and advice of counsel. Second, you do not mention the place of birth or the nationality of your fiancé. This raised an eyebrow for me. If he was born in or is a citizen of any country believed to be a state-sponsor of terrorism (including, at the very least, Cuba, Syria, Sudan and Iran), then I believe the USConGen will NOT accept the case for processing. This is probably also true for citizens and nationals of high-visa-fraud nations. Third, US consulates agree to take third-country nationals, then later STOP taking third-country nationals frequently, so I recommend that the applicant e-mail the consulate to ask if they will accept the case. If you are armed with an e-mail from the consul, then they'll take you. Finally, if there is ANYthing at all unusual, out of the ordinary, irregular, strange, funny, or odd about the case, I would think twice about third-country processing. Consulates do not like to stick their necks out, so if they have a doubt, they'll deny and refer the applicant back to the country of origin or nationality. And if your fiancé is not VWP eligible or has no other visa -- and we have already established he does not have an unexpired H-1 stamped into his passport -- he will have a bit of a chore getting back into the USA.

About traveling with a pending PERM case. If your fiancé has a pending PERM case, but the I-140 and I-485 have not yet been filed, then he would ordinarily be allowed to re-enter the USA using the H-1 visa in his passport. Alas, your fiancé does NOT have an H-1 visa. He only has H-1 status. Without a visa in his passport, he would only be allowed to re-enter if he has another valid visa or under VWP.

After the I-485 is filed, most applicants are eligible for and receive Advance Parole, and your fiancé would be able to use this to travel in and out. Caution: If your fiancé has EVER been out of status, or unlawfully present in the USA, then I would advise using the Advance Parole only after consulting with an experienced immigration attorney.

I hope this clears things up for you a bit.

--J Craig Fong
Los Angeles, CA

Folinskyinla

Hi:

My dear friend J Craig Fong has given you a good general answer.

As for being confused, you might want to go to the "services" link on my poor excuse of a web page -- it was a Court which described the immigration laws as a "never never land where plain words do not always mean what they say." However, this statement was made back in the days when the law was a lot simpler. [And when the government agencies actually made an effort to follow the rules.]

Do consult with that experienced immigration lawyer. Your questions are not simple and you are correct in being confused.

There are many questions posed here which will elicit useful answers -- in fact, I often learn things here and I've been at this for over 30 years! That said, the type of questions you are asking really can't be resolved in any reliable fashion on a forum such as this.

And it may very well be that there is no "clear" answer. The immigration laws are like that at times.

Good luck.

confusedgal123

Thank you so much J Craig Fong - that was really helpful. I mean really really helpful. For the first time someone has actually laid it out in black and white and I am really grateful.

Your assumptions correct - he had a COS done. He is from Bangladesh - no idea whether it falls under the threat countries list. He has never been out of status or anything we are aware of.

Take your point of going to a third world country. And the alternative is to go to his home country. Sigh. Right now I just wish I knew what was best for both of us.

He could be waiting for years for his I485 filing under EB3 category, or alternatively if he came to the uk, he would be british citizen in that time. right now I am not sure what is best .....