canadian with fiance on H1B

canadiancitizen
New Member



Joined: 05 Aug 2008
Posts: 4
Location: quebec

Posted: Fri Sep 26, 2008 11:06 am

 

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Hello there:)

I am a canadian citizen going to marry my fiance in Feb 2009. He is presently living in the states and has a working permit in the USA (H1B) visa. He would like to start his process of EAD. What is the best way to go about this?

If he applies for the EAD before I move there, will I have difficulties moving to the states?

Should we apply for the EAD together when I move to the states?

If we apply together, does it mean that I get the EAD in 1.5 yrs from time of application? (I do not qualify for TN visa)

I have my own business in Canada, what type of visa should I be looking at to start working in the states? I do not want to start my own business at first, would like to work for an employer.

Or should he wait to apply for EAD and I should move there on an H4?


I appreciate all your help in advance!

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g-op
CanuckAbroad Regular



Joined: 25 Sep 2008
Posts: 32
Location: montreal

Posted: Fri Sep 26, 2008 2:51 pm

 

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When you say he is applying for his EAD, do you mean his company is sponsoring him to get an I-551 "green card"? Usually an h1-b if sponsored for a green card will have his company file an I-140, then based on that file an I-485, I-765, and an I-131 at the same time.

I-485 Application to register Permanent residence

I-765 Application for Employment Authorization card (EAD)

I-131 Application for Travel document.

If he is currently an H1-B, as a Canadian you could obtain an H-4 all you would need is provide CBP with a Marraige certificate, and proof of your husbands H1-b status and that he had already been admitted or he could be travelung with you.

If his company then applies for him to get a green card you as his wife could also file as a dependant of his. Filing same forms and obtaining an EAD based on the application to obtain a green card.

As an H-1b or and H-4 dependant of H-1B you can have Dual Intent, this means you can travel outside the US on your H1-b or H-4 as long as you are still in that status. If you as an H-4 take asvantage of your EAD and begin to work you are no longer in Status as an H-4 so you would need the I-512, obtained by applying for travel document I-131, This allows CBP to parole you in to resume your adjustment of status from h-4 to LPR.

Hope this helps.

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Steven
CanuckAbroad VIP



Joined: 28 Sep 2007
Posts: 1582
Location: Calgary

Posted: Sat Sep 27, 2008 3:28 pm

 

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Are you talking about AOS to permanent residency? His employer has to sponsor him on I-140 to do this.



Not until his visa number comes up which will probably take a while, depends on what category they apply for him in. Usually on H-1B it's either EB-2 or EB-3 skilled worker. EB-2 takes about a year, EB-3 skilled worker takes about three and a half years. So until he gets his visa number and applies for AOS on I-485, nothing changes.



If you're talking about AOS then yes, but you can't do that until his visa number comes up. (You will need to be married obviously).



You both get permanent residency. How long depends entirely on his status, what the quota is etc. for his EB based I-140 filed by his employer.



If you don't qualify for TN-1 then you would need to get H-1B, hard to say without knowing what you do for a living and what your qualifications are.



Depends on the wait I guess. Hard to know, first of all he needs to get his employer to sponsor him.

Bear in mind there is no real difference between being married or being his gf, either way you can live with him. If you're not married it's B-2, if you are married it's H-4. The restrictions on what you can and cannot do are the same either way. There is no time limit on B-2 status if you are "co-habiting" with a visa holder.
_________________
Steve.

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g-op
CanuckAbroad Regular



Joined: 25 Sep 2008
Posts: 32
Location: montreal

Posted: Sat Sep 27, 2008 3:43 pm

 

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"Bear in mind there is no real difference between being married or being his gf, either way you can live with him. If you're not married it's B-2, if you are married it's H-4. The restrictions on what you can and cannot do are the same either way. There is no time limit on B-2 status if you are "co-habiting" with a visa holder"

I would be cautious B2 does not allow one to live in the US indefinately, especially if your boyfriend is there on an H1-B, It implies if his H1-B is valid for 3 years she also could live there, this is untrue and she will risk being denied entry to the US. Being a girlfriend of a visa holder does not give her status, only spouses and children can derive status from a visa holder. Not a safe coarse of action in my opinion.

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Steven
CanuckAbroad VIP



Joined: 28 Sep 2007
Posts: 1582
Location: Calgary

Posted: Sat Sep 27, 2008 4:14 pm

 

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There's an exemption from the six month time limit for co-habiting partners, she can stay in B-2 as long as his H-1B is still valid.

http://travel.state.gov/visa/laws/telegrams/telegrams_1414.html
_________________
Steve.

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g-op
CanuckAbroad Regular



Joined: 25 Sep 2008
Posts: 32
Location: montreal

Posted: Mon Sep 29, 2008 4:06 am

 

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If he is currently working/Living in the US and she is in Canada it would be a little difficult to claim that they have been "co-habitating". Plus as a B2 she would need to prove unrelinquished foreign residence and not intend to Immigrate, If he is being petitioned to get a green card the case could be made and she even stated in her question that her intent is to eventually immigrate, hence ineligible for B2, and many reasons CBP could use to deny entry. State department memo seems to be for those who are already co-habitating partners at the time of visa issuance. Not follow to join to become co-habitators,in the US.

But, interpret as you see fit, I still suggest marry and enter as H-4. Don't try B2 as Steven suggested.

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