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Derivative of spouse filing for employment based green card

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  • Derivative of spouse filing for employment based green card

    Hello,

    My fiance currently lives in the US and is in the process of filing for an employment based green card (E3 third preference I think) - the current status is his employer is about to submit the ETA form 9089. We are planning on getting married soon and are hoping to include me as a derivative in his i-140 form.

    I currently live abroad (in the UK) and wanted to know how and when I would be able to join him in the US? Do I have to wait until he gets his green card or can I join him before then? I heard that I can get an E-34 visa (spouse of skilled worker). How long does it take to get this visa and will this visa allow me to go to the US immediately to be with him?

    Any advice would be useful!

    Thanks

  • #2
    Since your fiance is in the US, he will be doing Adjustment of Status. If you will be in the US also, you can also do Adjustment of Status at the same time they do. That requires you to be able to enter the US. You haven't said what status your fiance is in, but if they are still in status, you should be able to get the corresponding dependent type of visa (e.g. H4 for H1b, L2 for L1, O3 for O1, etc.) to go to the US.

    If you can't do Adjustment of Status from inside the US, then you would have to do Consular Processing from abroad, after your spouse's AOS is approved.

    This is my personal opinion and is not to be construed as legal advice.

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    • #3
      Thank you newacct for your response. My fiance is currently on an F1 visa (working on an extended STEM OPT). I have not bothered getting an F2 visa as I heard it is difficult, plus it's pretty pointless as I am able to come into the US through the visa waiver programme for up to 3 months and I also have a B2 visa that allows me to stay up to 6 months per visit.

      I will probably have to go through consular processing from abroad as it seems unlikely that I will be able to go through adjustment of status (unless I manage to get some other non-tourist visa such as an H1-B or F1). Do you know how long the process would take going through consular processing? I've heard that the process of AOS approval can take 12-24 months, which is obviously not ideal for us to be separated for that long, so would I have to wait until it is approved or is there a way that I can join him whilst he's waiting for it to be approved?

      Thanks

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      • #4
        I think you should come on a dependent type of visa to his type of visa, before he gets his green card, and then you do Adjustment of Status.

        Follow-to-join consular processing requires that his AOS be approved first before the petition can be moved to NVC to start consular processing.

        This is my personal opinion and is not to be construed as legal advice.

        Comment


        • #5
          Thanks again newacct - your responses have been very helpful!

          I have one more question if you wouldn't mind giving some further advice - I'm currently in the US visiting my fiance (he proposed to me on this trip). I'm here until November and am allowed to stay here up till January. We're thinking that we might just get married here on this trip and we were told by immigration attorneys that if we did get married now then I could just get an adjustment of status to F2 here without having to leave the US, otherwise I could apply for an F2 at the US embassy back in the UK if I were to go back home. My concern with going back to the UK is that I'm worried they will not approve giving me an F2 since my fiance is currently in the process of getting a green card (given that an F1 visa is for studying then returning back to your home country and not immigrating). Do you know if this would affect my chances of being approved? Would you recommend that I stay and do an adjustment of status instead?

          Thanks

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          • #6
            You could do a Change of Status to F2 (not Adjustment of Status; that means something different), though that could be denied for immigrant intent also. Also, even if you do a Change of Status, you would still need to get a visa the next time you leave the US and need to re-enter, so unless you stay in the US, getting a visa is unavoidable. If your spouse will change to H1b or L1 status before getting his green card, then you can get H4 or L2 and those are not subject to immigrant intent.

            This is my personal opinion and is not to be construed as legal advice.

            Comment

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