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Wilton A. Person
Wilton A. Person, Immigration Lawyer
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I have a friend that is French and she is in the US on an H1B Visa. She is recently engage

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I have a friend that is French and she is in the US on an H1B Visa. She is recently engaged to a US Citizen, but the wedding is not until February of 2014. She resigned from her H1B job mid-July to move to be with her fiancée. She is currenty "out of status" but her I-94 is good through 2015. She is currenty looking for another H1B job. How long should she look before she submits a I-539 Change of Status? Also - Can she change to a K-1? If she changes to a B2 and then gets married, will that create problems for her later when she applies to "adjust her status?"
Submitted: 11 months ago.
Category: Immigration Law
Expert:  Wilton A. Person replied 11 months ago.
The positive news is that her future US citizen spouse will be eligible to file a I-130 petition on behalf and she would be able to file an adjustment of status I-485 because she initially entered legally with her H-1B visa.

However, it is important to note that a foreign national is not eligible to resign from one job while in the United States and then simply look for another job. The proper procedure is for a H-1B visa holder to transfer his or her visa to another company without resigning or quitting the current H-1B visa.

Further, the change of status application, the I-539 is not an option once a person falls out of status in any category.

Unfortunately, your friend's legal status is tied to a future husband unless she were to leave the United States and return with a non-immigrant visa such a B or K-1 visa.

Customer: replied 11 months ago.

So, since she did already resign from her job about 5 weeks ago - would you recommend that she just stay in the US until she is married and file for the I-130 and I-485?


 


Or is it better for her to return to France and have her fiancé file the K-1?


 


I've read this visa takes some 5-6 months and the wedding is only 5 months away.


 


Also - would she have to be out of the country the whole time - or could she visit on a B2 or Visa Waiver?


 


 

Expert:  Wilton A. Person replied 11 months ago.
It is not generally a good idea to remain in the United States without lawful status but if she were to leave the United States, it is true that the K-1 visa could take six to seven months to process and visitor visas are not guaranteed especially if she were to apply so soon after leaving the United States.

Nevertheless, these are some of issues that your friend would need to consider before making a decision so it make be worthwhile for her to consult an immigration attorney in her local area who can offer her legal advice.
Customer: replied 11 months ago.

Just to clarify - if she did find another job willing to sponsor her H1B, would she be able to stay? Or would she still have to return home?

Expert:  Wilton A. Person replied 11 months ago.
Unfortunately, "no" because she resigned. However, Your friend could return to France and have the new employer file a new I-129 which would allow her to obtain a new H-1B visa.
Wilton A. Person, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 4146
Experience: Knowledgeable and experienced immigration lawyer.
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