If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can't answer every question, but if you ask a short question that can be answered concisely, we'll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.

1) QUESTION:

If my fiancé's green card is being sponsored by his employer, and is in the final stages of being processed, can I receive a green card along with him if we get married?

ANSWER:

In order for a foreign national to be eligible to obtain a green card as a derivative beneficiary of their spouse, they must be married before the primary beneficiary (in this case the employee) becomes a Permanent Resident. So if the marriage takes place before the I-485 Application for Adjustment of Status is approved then the person would be eligible to receive a green card as a derivative beneficiary of their spouse, as long as they are otherwise eligible.

However, if the marriage takes place after the I-485 Application for Adjustment of Status is approved then the person would not be eligible to receive a green card as a derivative beneficiary of their spouse. In that case the Permanent Resident spouse would have to file a family based immigrant petition for the foreign national under the F-2A category. Under the F2A category it could take several years for a visa to become available for this petition.

It should be noted that the situation varies if the primary beneficiary is being sponsored by a family member instead of an employer, as some family base categories do not allow derivative beneficiaries and marrying could also change the preference category or even cause the petition to become revoked. An immigration lawyer should be consulted before marrying in such situations.

2) QUESTION:

After receiving my green card through my employer, how long do I have to stay with my employer before I can look for a new job? Will my leaving affect my chances of getting citizenship?

ANSWER:

There is no set amount of time that someone must stay with their employer after receiving their green card. You must have had the intention to work for your employer in the sponsored position. Your employer must have had the intention to employ you in the sponsored position. If you do not work for your employer at all, or only work for a short period of time, this could cause USCIS to question whether you actually intended to work for the employer. Therefore it is recommended that you work for the employer for at least a while. Some attorneys recommend that you work for the employer for at least 3 months, while some attorneys recommend that you work for the employer for at least 6 months. However, there is no set amount.

Normally this question will not come up until the employee applies for citizenship. USCIS can look to see if you worked for the employer in order to determine whether you committed fraud in your green card application. However, as long as you worked for the employer for some period and can give a reasonable explanation for leaving the position, the fact that you did not stay with the employer long should not be a bar to receiving citizenship.

You should also keep in mind that, in certain circumstances, the green card application is portable to a new employer. Therefore, when the application is portable, you can start working for the new employer as your new petitioner even before the green card application is approved. However, before you move to a new employer under the portability regulations, I would recommend that you consult with an immigration lawyer to ensure that your application is truly portable.

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