GC and H1 doubt

[tina8]

hi!
can anyone tell me if i can apply for an H1 or J1 visa if i am married to a GC holder. i mean if we get married but i choose not to file for a GC immediately but instead get my own H1 or J1 visa. is it possible? will they reject my H1 plea if i am married to a GC holder but havent filed for a GC?

[PraetorianXI]

You can apply for an H1 or F1 visa.

I would not recommend a J1 (because it may be subject to a 2 year Home Residency Requirement). They won't reject it "just because" you are married to a GC holder, but in that case you will have better chances if you apply for an H1 visa (because it is dual intent).

[tina8]

i m sorry. but can u tell me what u meant by 'dual intent' ?

[PraetorianXI]

ual intent is a United States immigration law concept. It refers to the concept that certain visitors may be temporarily present in the USA while acting in a manner that later leads to obtaining lawful permanent residence (green cards). Where dual intent is allowed, the foreign citizen may openly and actively pursue permanent residency in the United States while still maintaining the intention to return to their country of origin. When dual intent is not allowed, the determination that the non-immigrant visa holder or applicant has an intention to pursue a green card is grounds for termination of a visa issued, refusal of the visa application, refusal of admission at the port of entry, refusal of readmission or removal (deportation).

Certain types of foreign visitors are allowed dual intent, and other categories of visitors are not. Persons with H-1B visas (for specialty workers), O-1 visas (for workers who have extraordinary ability), L-1 visas (for corporate transferrees), K visas (for fiancees/spouses/minor children of U.S. citizens) and V visas (for spouses/minor children of lawful permanent residents) are generally allowed dual intent. Most other foreign visitors and workers, like those on tourist, student, journalism, or entertainer visas, are denied dual intent and will be denied admission if evidence shows that they have interest in remaining in the United States permanently, i.e. in pursuing a green card. While certain activities appear likely to lead to a green card, such as marriage to a U.S. citizen or permanent resident there are times when individuals who are married to U.S. citizens are allowed into the United States on tourist visas or visa waivers if they can demonstrate that their trip is temporary and that they are likely to return to their country while they wait for their immigrant visa to become available.

The concept of dual intent is also related to the so-called 30-60 day rule for individuals[1] who obtain jobs or marry soon after arrival in the United States on a temporary visa. This rule first formulated by the Department of State and now also applied by the USCIS has been used to question the intention of an individual who comes to the United States for a short trip and then ends up marrying a U.S. citizen after arrival without having obtained a fiancee visa before arriving to the U.S. or seeks to change status from a visitor visa to an H-1B visa, for instance. The rule states that someone who acts in a manner to change status within 30 days is presumed to have had immigrant intent and if they act within 60 days of entry the authorities can be suspicious of the alien's fraud upon their original application.