Highlights from MurthyChat Session: 22.Oct.2012
In frequent sessions of our Chat, Sheela Murthy and other senior attorneys provide guidance that clarifies the law in real time. For details on chat participation, click here.
Question: If a green card holder mother petitions for her son, what happens if, after that, her son gets married?
If the GC holder mother files an I-130 petition for her son, who is 21 or over, the case fits within FB2B. If her son marries before the mother is able to naturalize to U.S. citizenship, the case ends at that point. This is because there is no category for MARRIED sons or daughters of GC holders. On the other hand, if the mother becomes a U.S. citizen, while the son is single, the case can continue and shifts automatically into FB1. After that, if the son marries, the case shifts down to FB3 for married sons / daughters of U.S. citizens, and retains the same priority date throughout.
Question: My 6 year H1B expires by Oct 2013. When is the best time to start the green card process?
The process should have begun about 5 months ago, to allow for an initial filing in October 2012. The GC case needs to start right away to have any chance of getting an extension beyond the 6 years without having to depart the United States for at least a little while (or change to another status, if that is an option). There is an article on MurthyDotCom that discusses filing GC cases in the sixth year. The article covers the key issues and some of the options in these situations. The best way is to begin no later than 6 months before the start of the 6th year. This will allow the PERM LC to be filed at least 365 days before the end of the 6th year, as LCs take about 5 months to prepare. When this does not happen, it is still potentially possible to get more H1B time, it is just far less certain. You may want to set a consultation to go over the possible scenarios and strategies.
Question: What is the process when an Indian citizen marries a GC holder in the United States?
The GC holder can file the I-130 petition to start the GC process for the new spouse. But, there is a waiting time of at least a few years for visa number availability in the FB2A category for such spouses. Thus, the non-GC holder needs to keep an independent status until s/he can benefit through the marriage-based case. This means waiting until the priority date for the case is current. The situation is a bit different if the GC holder is eligible for naturalization to U.S. citizenship any time soon. Spouses of U.S. citizens are immediate relatives and do not face waiting times for visa numbers.
Question: My H1B is about to expire and I have and EAD. Should I apply for extension or use the EAD? Which is safe (H1B or EAD)?
We always suggest keeping the H-1 if that is an option. If the employer is willing to keep filing H1B extensions even if the employee has an EAD, then the employee should accept that offer. It is best if one can keep H1B status, as it provides a back-up status in case something goes wrong with the I-485. We do understand, of course, that not everyone has this option and may have to turn to the EAD for authorization to work and rely on the I-485 for permission to remain in the United States.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.