I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans. My California State Bar record can be found here and my law firm website can be found here. Feel free to connect with me on Linkedin.
If you are currently working in the U.S. on H-1B1 (Singapore) status and are thinking of getting married to an American citizen, you may be wondering if (and how) you can apply for a green card based on the marriage.
First off, it is possible to apply for a green card while you are in the U.S. on H-1B1 status – the process of seeking a green card while you are in the U.S. is called “adjustment of status.”
However, due to the non-dual-intent nature of the H-1B1, here are some precautions to note:
1. If you are applying for an H-1B1 visa at the US Embassy in Singapore (whether it is for the first or subsequent time) outside the U.S., do NOT get officially engaged or married yet.
This precaution stems from the fact and rationale that being a fiancé or spouse of a U.S. citizen significantly demonstrates the intent to take up permanent residence in the U.S., which jeopardizes your H-1B1 visa application before the Embassy.
2. If possible, try NOT to get married shortly after you have entered the U.S. on your H-1B1 visa. Consider getting married after 90 days from your admission into the U.S. on your H-1B1 visa.
This precaution stems from the Department of State’s “90-day rule” which provides that when a person engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, that person is presumed (the presumption can be rebutted) to have made a willful misrepresentation in seeking a visa or admission to the U.S.
The Department of State’s 90-day rule is arguably not a hard-and-fast rule for adjustment of status cases because this rule pertains to the Department of State (which oversees the U.S. embassies and consulates abroad). Adjustment of status, on the other hand, is processed by the USCIS, which is within the purview of the Department of Homeland Security (not the Department of State). The USCIS Policy Manual has since omitted references to the Department of State’s 90-day rule.
Nevertheless, the current version of the USCIS Policy Manual still states as follows: "Although conduct inconsistent with one’s nonimmigrant status and prior representations does not automatically mean there is a misrepresentation, such evidence permits a reasonable person to conclude that the applicant may be inadmissible for fraud or willful misrepresentation, especially if the violation or conduct occurred shortly after the U.S. Department of State (DOS) visa interview or after admission." (Emphasis added) (USCIS Policy Manual, Vol. 8, Pt. J, Chap. 3, as of Sep 8, 2022).
Therefore, although the timing of the marriage to a U.S. citizen after entry into the U.S. on the H-1B1 visa has not been a major issue from my experience so far, there is still a risk that questions will be raised at your adjustment of status interview if you get married too soon upon your entry into the U.S. on an H-1B1 visa.
3. If an H-1B1 employer decides to extend your H-1B1 status in the U.S. with the USCIS using an I-129 petition, you may wish to wait for the I-129 petition to be approved first before filing for adjustment of status.
This is to help ensure that the I-129 petition mentioned in the topic sentence above goes smoothly (The current processing time for the I-129 petition for an H-1B1 is approximately 2 to 4 months).
This precaution stems from instances of USCIS indicating an intent to deny and/or actually denying I-129 petitions on behalf of an H-1B1 employee when an adjustment of status for the H-1B1 employee was filed during the pendency of the I-129 petition (although there also have been I-129 petition approvals by USCIS in similar instances as well).
As you can see from the above, if you are on H-1B1 status and thinking of marrying your U.S. citizen partner, it is possible to apply for adjustment of status to obtain a marriage-based green card. Nevertheless, due to the nature of the H-1B1, it will probably serve you well to consult with an experienced immigration lawyer who has dealt with adjustment of status cases for H-1B1 visa holders to help you find a suitable strategy forward.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. The views expressed here are the author's own.
