Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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Dear Sophie:
My fiancé is in the U.S. on an H-1B visa, which is set to expire in about a year and a half.
We were originally planning to marry last year, but both he and I want to have a ceremony and party with our families and friends, so we decided to hold off until the pandemic ends. I’m a U.S. citizen and plan to sponsor my fiancé for a green card.
How long does it typically take to get a green card for a spouse? Any tips you can share?
— Sweetheart in San Francisco
Dear Sweetheart:
Congratulations! It’s so wonderful to hear you’re planning to take the next step with your beloved. I understand wanting to wait to have a big wedding and party. However, to avoid the risk that your husband-to-be will have to leave the U.S., I recommend that you get married in a civil ceremony as soon as possible and immediately file for a green card.
Be sure to check out the podcast that my law partner, Anita Koumriqian and I posted on the ins and outs of applying for a fiancé visa (if your fiancé is living outside of the U.S.) or a marriage-based green card.
If your husband has already been sponsored for a green card by his employer and he’s only waiting for his priority date to become current, his employer might be able to renew his H-1B visa beyond six years, which would mean he won’t have to leave the U.S. while he waits for either green card to come through. Keep in mind that due to COVID-19 restrictions and an increase in filings, U.S. Citizenship and Immigration Services (USCIS) is facing significant delays in processing all immigration cases. Currently, USCIS may take more than a year to process marriage-based green card petitions.
To answer your second question, here are my tips for getting a marriage-based green card for your soon-to-be husband:
Ask for employer support
Given that your fiancé’s employer could benefit by retaining him without going through (or needing to complete) the lengthier and more costly process for an employer-sponsored green card, your fiancé should ask his company to cover the legal and filing costs for the marriage-based green card. Your fiancé’s employer will also probably still have to submit an H-1B visa renewal on his behalf.
For a good-faith marriage, marriage-based green cards generally are quicker, less document-intensive and less expensive than getting an employer-sponsored green card. If your fiancé is from India or China, he would face a substantially longer wait for an employee-based green card due to the annual numerical and per-country caps.
There are no numerical or per-country caps on marriage-based green cards for immediate relatives. Because of this, you will be able to file Form I-130 (Petition for Alien Relative), which establishes your relationship to your spouse, and Form I-485 (Application to Register Permanent Residence or Adjust Status) for the green card at the same time (concurrent filing).
Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)
Hire an immigration attorney
Filing a petition to sponsor a spouse for a green card sounds straightforward, but it requires more than just filling out the appropriate forms. Many couples come to us after going it alone and running into problems or getting denied.
An experienced immigration attorney can guide you through the filing process, make sure your fiancé remains in status, as well as prepare you for and accompany you to the required USCIS interview. At the interview, your lawyer can assist you with answering questions posed by the interviewing officer, provide documents and document any necessary follow-up.
People often ask me whether USCIS officers consider it a negative if an attorney goes with them to their interview. Actually, the contrary is true.
Knowing that the couple is represented by an immigration attorney who has already concluded that the couple married for love — and not for a green card — can make the officer’s job easier. And it can provide great peace of mind to busy professionals already working hard in their daily jobs.
Keep in mind that law firms offer different pricing structures. If you go with a law firm that charges an hourly rate, make sure you’re well-organized before any meeting or phone call with an attorney. If you go with a law firm that charges a flat fee, make sure you know what services are included. Most immigration firms charge on a flat-fee, project-based model for most services.
Determine if you need a co-sponsor
Figure out whether you will need to find someone to jointly sponsor your spouse. To sponsor your spouse for a green card on your own, you must have an annual income of about $20,000. The minimum annual income is based on the U.S. poverty guidelines for a two-person household, but it will change based on your own personal household dynamics.
If you’re self-employed, you must provide proof you own a business, including a copy of your business license, business bank account and tax returns. If you are employed by a company, you must provide an employment verification letter, your most recent pay stubs and tax returns. If you are unemployed and don’t have sufficient assets, such as substantial savings, you will need to find someone over the age of 18 who is either a U.S. citizen or a green card holder — and preferably a family member — to jointly sponsor your spouse. Your attorney will help you navigate this process.
Tell the truth when asked
Lying to the government is a crime and can have severe consequences, including denial of a green card petition, deportation or even being barred from ever returning to the U.S. Remember, however, it might not be in your best interest to disclose extra information that has not been requested.
If you have an attorney, come clean about your past to figure out the best way to proceed. An attorney can verify your eligibility and present the strongest case on your behalf.
Be thorough
Mistakes can delay or even derail your case. Even with an attorney, make sure you:
- Use the most recent edition of the correct forms.
- Answer all questions.
- Back everything up with evidence and documentation.
- Meet all deadlines.
- Sign the correct pages, keeping your signature inside the box so it can be scanned.
- Use only blue or black ink.
- Include the correct filing fee amount with your paperwork.
- Send your paperwork to the correct address and track it.
If you have any other questions, feel free to reach out.
Best wishes to you and your fiancé on your life journey together!
Sophie
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!