H1B to Marriage Green Card FAQ

Updated on 01/02/2023

If you are an H1B visa holder and have married a US Citizen or US Legal Permanent Resident, you may be eligible to obtain a Marriage Green Card which will allow you to live and work permanently in the United States. In this article, you will find answers to the most frequently asked questions about converting from an H1B Visa to a Marriage Green Card, including the requirements, the application process, and possible complications.

H1B to Marriage Green Card

1. Can I apply for an H1B and Marriage Green Card at the same time?

Yes. The H1B visa is a Dual Intent visa meaning that an H1B holder can have two intentions when applying for it and holding it: A) to come to the United States temporarily and then leave, and B) to immigrate to the United States permanently. This means that the USCIS will not penalize an H1B holder for applying for a Marriage Green Card as they were allowed to have wanted to permanently immigrate to the United States from the beginning.

2. Will a Marriage Green Card application affect my H1B status?

No. The USCIS will treat the H1B and Marriage Green Card as two separate processes and statuses which are unrelated. Even a rejection of a Marriage Green Card application will not affect your H1B status.

3. How can an H1B visa holder obtain a Marriage Green Card?

The United States, through its system of Family Based Immigration, allows an H1B holder to obtain a Green Card through marriage to a US Citizen or a US Legal Permanent Resident (LPR). For this to happen, the US citizen or LPR spouse (called Petitioner) must apply to the US Government on behalf of the H1B holder (called Beneficiary) in order for the H1B holder to receive a Family Based Visa, which then allows the beneficiary to obtain a Marriage Green Card.

4. Is there a difference if an H1B visa holder marries a U.S. citizen vs. a Legal Permanent Resident?

The process for getting a Marriage Green Card varies depending on whether you marry a US Citizen or a Legal Permanent Resident:

Married to a US Citizen

There are two main steps to obtaining a Marriage Green Card if you marry a US Citizen:

  • First, the US Citizen spouse (Petitioner) files an I-130 Petition (and supplemental I-130A form) with the USCIS on behalf of the H1B holder (Beneficiary). With this petition, the Petitioner is officially asking the government to recognize the bona fide marriage between the Petitioner and the Beneficiary, which will be the basis for the grant of an IR1 (Family Based Visa) to the H1B holder.
  • The H1B holder then files a Marriage Green Card application (Form-I-485) to ask the government for Legal Permanent Residency based on their IR1 Visa.

The good news is that because there is no yearly limit on the number of IR1 Visas the government can grant (as it is in the Immediate Relative Visa Category), the USCIS allows you to perform both steps simultaneously and file the I-130 and I-485 forms together (called concurrent filing). This allows both requests to be processed at the same time which shortens the application timetable considerably.

Married a Legal Permanent Resident

There are three main steps to obtaining a Marriage Green Card if you marry an LPR:

  • The LPR spouse (Petitioner) files an I-130 Petition (and supplemental I-130A form) with the USCIS on behalf of the H1B holder (Beneficiary). With this petition, the Petitioner is officially asking the government to recognize the bona fide marriage between them, which will be the basis for the grant of an F2A (Family Based Visa).
  • As there is a limit on how many F2A visas are granted in a year, the H1B holder must then wait for an F2A Visa to become available. The H1B holder can check visa availability online at the US Department of State Visa Bulletin website which is updated each month. When the H1B holders’ Visa Priority Date comes current for their country of origin, indicating that there is an F2A Visa available, they can then proceed with the process.
  • The H1B holder then files a Marriage Green Card application (Form-I-485) to ask the government for Legal Permanent Residency based on their F2A Visa.

The unavailability of F2A visas prevents concurrent filing (the ability to file the I-130 and I-1485 forms at the same time) and adds a lengthy wait for an F2A visa to become available. This makes it all the more imperative for an H1B holder married to an LPR to file for their Marriage Green Card as soon as possible, as there is always a looming danger that the process may drag on past the H1B holder’s 6-year time visa limit to remain in the United States. Good news is that F2A visas have always been available since 2019. Thus I-130 and I-485 can be concurrently filed for H1B holders.

5. What forms are needed for an H1B holder to apply for a Marriage Green Card?

The forms that will you need to be filed during your Marriage Green Card Process are:

  • Form I-130 – Petition for Alien Relative
  • Form I-130A – Supplemental Information for Spouse Beneficiary
  • Form I-485 – Application to Register Permanent Residence or Adjust Status
  • Form I-864 – Affidavit of Support
  • Form I-693 – Report of Medical Examination and Vaccination Record (You can submit it with Form I-485 or at future green card interview)

Below are other possible forms that you may have to file. BUT always ask your attorney’s advice before using the EAD card and Advance Parole so as not to prejudice your immigration status:

  • Form I-765 – Employment Authorization Document
  • Form I-131 – Application for Travel Document

6. What documents are needed to prove my marriage is real?

In order to obtain a Marriage Green Card, you will have to prove to the USCIS that the marriage to your US citizen or LPR spouse is bona fide, meaning genuine and free from fraudulent intent. You will be asked to provide evidence, including but not limited to the following:

  • If there are children: proof of parentage or child birth certificate (if from the couple) and/or proof of raising the children together
  • Joint tax returns
  • Property being held jointly: bank accounts, deeds, auto registrations or car title, credit cards
  • Evidence of co-habitation: lease agreements, mortgages, utility bills, phone plans
  • Family plan health insurance, dental insurance, vehicle insurance
  • Spouse’s name as a beneficiary on life insurance, 401k, will or trust
  • Proof of shared life together: Plane tickets and receipts from vacations, the engagement ring, birthday presents, tickets and receipts from special dates together, cards and correspondence for holidays and special occasions
  • Photos of the couple together, especially: vacations, family get-togethers, the proposal, the wedding, important events
  • Sworn affidavit from people who know your marital relationship well

7. How long is the process for an H1B holder to obtain a Marriage Green Card?

The time it takes from I-130 petition filing to the arrival of a Green Card depends on several factors, including the processing speed of the local USCIS office, F2A visa availability, and even unforeseeable events like Covid shutdowns. The times shown below are only estimates based on recent filings and may vary from person to person:

For an H1B holder married to a US Citizen:  6 – 24 months

For H1B holder married to an LPR:

  • I-130 approval: 5 – 15 months
  • F2A Visa availability wait: It has been current since July 2019, but that can always change
  • Green Card approval: 6 to 24 months

8. How much does it cost for an H1B to obtain a marriage green card?

A rough estimate of the costs you will incur in the Marriage Green Card process are:

Form I-130 filing fee: $535

Form I-485 filing fee: $1,140

Biometrics fee: $85

Medical Exam: Depends on the doctor (generally $400-$800)

9. What happens after I file for my Form I-485 Marriage Green Card Application?

Between filing your Form I-485 and receiving your Marriage Green Card, there are several steps that must be taken:

  • Biometrics Appointment – You will be required to attend a biometrics appointment in which the US government will take your fingerprints, photograph, and signature, and use this information to confirm your identity and to perform a detailed background check.
  • Green Card Interview–You will need to attend a Marriage Green Card interview. This will be at a local USCIS office near your physical address. At the interview, the US government official will ask questions about your background and your relationship with your spouse, mainly to establish the validity of the marriage. The official will also be assessing if there is anything in your history that would make you inadmissible to the United States. If the interview goes well, you will receive your Green Card in the mail very soon.

Work Authorization and Advance Parole may be filed for concurrently with your Form I-485. Always ask your attorney’s advice before using the EAD card and Advance Parole, so as not to prejudice your immigration status:

  • Work Authorization– You may choose to file for work authorization (Form I-765) alongside your Form I-485. You will obtain an EAD card which will grant you work authorization independent of your H1B work authorization to be used during the Green Card processing period.
  • Advance Parole – You may choose to file for Advance Parole (Form I-131) together with your I-485 Green Card application. Advance Parole gives you permission to take a trip outside the United States while your Green Card Application is being processed.

10. Can I begin the Marriage Green Card process if I have lost my H1B status?

The answer depends on whether you married a US Citizen or an LPR:

Married a US Citizen

Yes. If you are married to a US Citizen and your H1B status has already expired, you can still file for a Marriage Green Card. This is because the U.S. immigration law allows immediate relatives of US citizens, (meaning spouses, minor children, and parents) to adjust to Permanent Residency by filing Form I-485 even if their status has expired.

Keep in mind that this rule does not apply if you have left the United States after being unlawful presence for more than 180 days in the country or if you have entered the US illegally in the past.

Another thing to note is that your work authorization expired along with your H1B, so you may not work from the time your H1B expired until you get new work authorization or you receive your Green Card.

If your H1B has already expired or is about to expire, you’d better speak to an immigration attorney before taking any further course of action to make sure you do not prejudice your case.

Married a Legal Permanent Resident

You cannot obtain a Marriage Green card inside the U.S if you failed to keep a valid status when you file the Form I-485. However, you may be eligible to obtain a Marriage Green outside the U.S. through consular processing if you accrued unlawful presence in the U.S. for less than 180 days before leaving the U.S.

If you have overstayed your H1B status, you should speak to an immigration attorney immediately to figure out your options, as you may be accruing unlawful presence which may lead to future immigration penalties.

11. Must I keep my H1B status valid during the entire process to obtain a Marriage Green Card?

The answer depends on whether you married a US Citizen or an LPR:

Married a US Citizen

No. H1B holders married to US Citizens do not need to keep their H1B status valid during the entire Marriage Green Card process as they are protected in two ways:

First, the U.S. immigration law allows spouses of US Citizens to apply for a Marriage Green Card even if they have overstayed their visa (i.e. staying with no legal status after their visa has expired).

And second, filing Form I-485 automatically imparts authorized stay called “I-485 pending”) on a Green Card applicant through statute. This means that if you have filed Form I-485, you are allowed to stay lawfully in the US until the outcome of your application is determined, even if you lose your H1B status in the meantime. And as you are allowed to file your Form I-485 alongside the I-130 Petition (concurrent filing), you will obtain this protective legal status from the beginning of the process.

However, this I-485 Pending status does not come with Work Authorization. So if your H1B status expires while your I-485 is pending, and you have not received Work Authorization through Form I-765, you will need to stop working until you receive an EAD card or your Green Card is approved.

Married a Legal Permanent Resident

A spouse of an LPR must keep their H1B status, or another legal immigration status, until your F2A visa is current, and you are able to file a Form I-485.You must be in a legal status at the time of filing Form I-485.

If your H1B visa expires while you are waiting for your F2A visa to come current, you will not be able to proceed with obtaining a Marriage Green Card as you now have no legal status. You must switch to another legal status, such as another temporary visa, or leave the United States to do Consular Processing in order to continue the process of obtaining a Marriage Green Card.

After a spouse of an LPR files their Form I-485, the immigration law automatically imparts authorized stay on them (called “I-485 pending”) through statute. This means that if you have filed Form I-485 when you were in H1B status, you are allowed to stay lawfully in the US until the outcome of your application is determined, even if you lose your H1B status after filing of I-485.

However, this I-485 Pending status does not come with Work Authorization. So if your H1B status expires while your I-485 is pending, and you have not received Work Authorization through Form I-765, you will need to stop working until you receive an EAD card or your Green Card is approved.

12. I already started the Green Card Marriage Visa Process; do I have to leave the U.S. after my H1B status expires?

As explained above, H1B holders married to US Citizens will not have to leave the US if their H1B status expires during their Marriage Green Card process.

For H1B holders married to LPRs, if they have properly filed their Form I-485 when they were in H1B status, they will not have to leave the US if their H1B status expires during their Marriage Green Card process.

13. Must I keep my H1B status after filing Form I-485?

No. Filing Form I-485 automatically imparts authorized stay (called “I-485 pending”) on a Green Card applicant through statute. This means that if you have filed Form I-485, you are allowed to lawfully stay in the US until the outcome of your application is determined, even if you lose your H1B status in the meantime.

14. Can I apply for an EAD card based on my Marriage Green Card application even though I have valid H1B status? What is the effect if I use this EAD card?

You have the option to file for work authorization (Form I-765) alongside your Form I-485. This will grant you an EAD card, which is separate work authorization from the one you received with your H1B.

Filing for and obtaining an EAD card does not by itself affect your H1B status and it is often a good precautionary measure to have in case you lose your H1B work authorization during the long application process, especially if you are already near the 6-year limit. In this case, you would be able to use your EAD work authorization once your H1B work authorization expires.

BUT, if you use your EAD work authorization while you are still on H1B status, (i.e. for a second part-time job) you automatically terminate your H1B status. You probably don’t expect this, so please consult an immigration attorney before deciding to use EAD work authorization while on H1B status.

15. I married a U.S. citizen; can I continue to work if I lost my H1B status?

No. You cannot work in the United States unless you are granted work authorization. If you have lost your H1B work authorization, you must not work until you receive work authorization through Form I-765 (EAD card), which may be filed alongside Form I-485, or when you receive your Green Card.

16. I married a Legal Permanent Resident; can I continue to work if I lost my H1B status?

No. You cannot work in the United States unless you are granted work authorization. If you have lost your H1B work authorization, you must not work until you receive work authorization through Form I-765 (EAD card), which may be filed alongside Form I-485, or when you receive your Green Card.

17. Can I travel abroad while my Marriage Green card application is pending?

If you still have H1B status while your Marriage Green Card application is pending, you may still travel abroad under the same H1B immigration rules as usual.

If your H1B status has expired, you may not travel abroad without being granted Advance Parole.

18. What is the effect if an H1B holder uses Advance Parole? Will I lose my H1B status if I use Advance Parole?

You have the option to file for Advance Parole (Form I-131) alongside your Form I-485. Advance Parole gives you permission to take a trip outside the United States while your Green Card Application is being processed.

Filing for and obtaining Advance Parole does not by itself affect your H1B status and it is often a good precautionary measure to have in case you lose your H1B travel authorization during the long application process, especially if you are already near the 6-year limit. In this case, you would be able to use Advance Parole once your H1B travel authorization expires to leave and enter the US without impacting your I-485 application negatively.

BUT, if you use your Advance Parole while you are still on H1B status, (i.e. leave the US and come back as a “parolee”) you automatically terminate your H1B status. You probably don’t expect this, so please consult an Immigration attorney before deciding to use Advance Parole travel authorization while on H1B status.

19. What if my LPR spouse naturalizes during my Marriage Green Card process?

If your LPR spouse becomes a US citizen during your application process, you will be moved up in the visa categories from an F2A visa, which often has long wait times, to an IR1 visa, which is immediate. This may save you months or even years of waiting during the application process. As soon as the naturalization occurs, you must send the USCIS a letter and supporting documentation regarding your spouse’s naturalization in order to implement your visa category change.

20. Is my H4 child eligible for a green card based on my marriage?

Your US Citizen or LPR spouse may petition for your H4 visa child if your child was under the age of 18 at the time of your marriage.

21. Can I include my H4 child's green card application in my Marriage Green Card application?

In the case of a US citizen spouse, separate I-130 and I-485 forms must be filed for each qualifying H4 Visa child. As they are immediate family relatives under the IR2 visa category, the forms can be filed concurrently and there are no visa waiting times.

In the case of an LPR spouse, any qualifying H4 child can be filed either as a derivative on the same I-130 form as the H1B holder or filed on a separate I-130 form. If any qualifying H4 child is turning 21 years of age or the LPR spouse plans to become a U.S. citizen during the marriage green card process, it is highly recommended to file a separate I-130 form for the H4 child. They will then have to wait for an F2A visa to become available along with their H1B holder parent. Each H4 child must then file an individual I-485 to receive a Green Card.

22. What if I divorce my spouse during my marriage green card process? Can I continue my Marriage Green Card process?

No. If you and your US citizen or LPR spouse divorce during your Marriage Green Card process, this will stop your eligibility to obtain a Marriage Green Card.

There is an exception for applicants who have been subjected to battery or extreme cruelty by their US citizen or LPR spouse. It is advisable to consult with an immigration attorney under such circumstances.

23. What if my spouse dies during my Marriage Green Card process?

The death of your US Citizen or LPR spouse does not necessarily mean the end of your Marriage Green Card process.

For a widow(er) of a US Citizen, generally your I-130 petition will be converted into an I-360 (which is special petition for widow(er)s) after you notify the USCIS, and the Marriage Green Card Process will continue.

For a widow(er) of an LPR, you will need to petition the USCIS to reinstate your Marriage Green Card Process under INA Sec. 204(l) or another protective statute and show that certain criteria are met.

You should consult with an immigration attorney if your US citizen or LPR spouse had died to find out your best option forward.

If you have any further questions about your H1B visa, applying for a Marriage Green Card, or any other immigration concerns, please contact DYgreencard.com today. We are here to help!

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