IMMIGRATION LAW WEEKLY

September 30, 1996

I am a Canadian who will be marrying an American within the next two months in Illinois. Is there a waiting period between the time we get married and the time that I can apply for a job without having to worry about obtaining an H1-B visa?

There is a waiting time. However, how long you will have to wait will depend on how you choose to proceed.

If you enter the United States as a fiance to get married, you can apply for an employment authorization right away. Also, once you are married and have applied for adjustment of status to permanent residence (as the immediate relative of a U.S. citizen) you are entitled to employment authorization as a pending adjustment applicant.

If you enter the United States as a B-2 visitor for pleasure, get married in the United States, and then return to Canada, you would not be able to work in the U.S. until you obtain your immigrant visa. Consular processing for an immigrant visa could take up to 10 months.

It is therefore preferable to adjust your status in the United States as you will be entitled to an employment authorization as an adjustment applicant. While you can enter as a B-2 visitor, get married, and then apply for adjustment of status, there are complications. The Immigration and Naturalization Service ("INS") will not admit you as a B-2 visitor if they find out that you intend to adjust status once you are married (remember that you cannot lie about it). Also, the INS can deny your adjustment application on the basis of negative factors, including your having preconceived intent to remain permanently at the time that you entered in visitor staytus.

However, where an adjustment applicant is the immediate relative of a U.S. citizen (as in your case), you will also have some positive factors in your favor. It is common for immediate relatives of U.S. citizens to have their adjustment applications approved despite their having preconceived intent, as long as they are otherwise eligible for adjustment. Be aware that serious problems can arise if you commit fraud or make material misrepresentations while initially seeking entry as a visitor. Be careful not to put yourself in a worse position.

I always recommend the fiance route since this is the way the INS wants to you do it. But it will take several months to have your K-1 petition approved in the U.S. and to have your fiance visa issued by a U.S. consulate. If you cannot wait, you may want to risk using the visitor/adjustment of status option.

However, you should wait a while after your entry as a visitor before you apply for adjustment. This is because U.S. consulates often apply a 30/60 day fraud rule. If you seek adjustment within 30 days of your entry as a visitor, you will be presumed to have acted fraudulently. Between 30 and 60 days, they can still allege fraud but there is no presumption as such. After 60 days, you should be okay.