Question: I have a GC since 1 year. My fiancé has an H1B since 2007 expiring 05/14 (incl. renewal). We have been together for 2 years and want to get married. I am an EU citizen and she is Korean. We have decided to get married ASAP so that I can sponsor her GC to make sure she gets her GC before the expiration of her H1B.
Questions:
1) How long will it take to get her GC?
2) We plan to have a small civil wedding with 2 witnesses ASAP to file. Is it a risk for GC approval? Will it raise questions on the bona fide marriage? We plan to have a large wedding ceremony outside the US about 6 months later.
3) Will we have a marriage interview from immigration and if yes, when would it take place? Should we mention the actual wedding ceremony?
4) Any advice on our plan?
Answer: Please see answers inline.
1) How long will it take to get her GC?
As a permanent resident filing for a Korean spouse, her case would fall under the Family Based, Second Preference, World Wide category (FB-2 WW) - which under the October Visa Bulletin, shows a priority date of April 1, 2010. This means there is a backlog in the category. In other words, beginning October 1, 2010, only those cases with priority dates on or before April 1, 2010 have a visa number available, ie, may file for adjustment of status (AOS) or immigrant visa process (IVP, which is performed abroad).
Your spouse would only be eligible to submit her AOS or IVP, when the FB-2 WW category shows her priority date as current. Let's say her I-130 is received on October 15, 2010, thus providing her with a priority date of October 15, 2010 (established on the date of filing). She has to wait until the date for FB-2 WW category shows October 15, 2010 or later in order to file the AOS or IVP.
Finally, with respect to how long it will take for her priority date to become current, it is difficult to predict. You can read my blog post about the visa bulletin to get a better grasp on how the Visa Bulletin works – it’s focused on employment based cases, but should help you nonetheless. You can find it here: http://ryvinimmigrationblog.blogspot.com/2010/09/what-is-visa-bulletin-explanation-and.html
If I had to guess, I would say, five months for the I-130 to be approved; followed by who knows for the priority date to become current (could several months, a year, give or take); followed about four to eleven months for the AOS (I-485) to be processed.
2) We plan to have a small civil wedding with 2 witnesses ASAP to file. Is it a risk for GC approval? Will it raise questions on the bona fide marriage? We plan to have a large wedding ceremony outside the US about 6 months later.
MR: Yes, it might raise some questions, but it is possible. I know this because I did the exact same thing with my wife. We had a civil ceremony - judge came to the house - with witnesses and some family and friends. We then had the "party" almost a year later. You should be ready to explain this and make sure you have a sufficient level of documentation to show the bona-fide nature of your marriage. You might consider working with a lawyer to help you present your case well, to help you clearly show this was the plan for personal reasons, as opposed to evading US immigration law.
3) Will we have a marriage interview from immigration and if yes, when would it take place? Should we mention the actual wedding ceremony?
MR: Yes, you will have an interview, which will take place after the adjustment of status is filed, within 4 to 11 months. If you choose to have the civil ceremony, followed by the party - you need to be up front about it. Trying to hide it, or even not mentioning it might lead an examiner to become suspicious in my opinion. Notably, couples usually bring pictures of the wedding to the interview. Most likely, your interview will be after the wedding party. If it is, I would likely suggest bringing photos from both ceremonies. If the interview comes before the party, you might bring some evidence (possibly receipts, invitations, guest list, etc. to show you are planning to have the party). It’s a judgment call, as to what evidence to bring – but under no circumstances would I attempt to hide this plan. Finally, another tip when bringing evidence to an interview is to avoid dumping loads of evidence on the desk of an examiner. It’s usually better to keep the evidence in a folder, organized and easily accessible and wait for the Officer to ask for things – at which point you should be able to provide.
4) Any advice on our plan?
MR: Your spouse needs to keep her H-1B status going, which sounds like it won't be a problem, at least from the standpoint of having time left on her H-1B (you mentioned 2014). The issue is because you are filing as a permanent resident and therefore she is not an immediate relative, she may not immediately file an adjustment of status application - which would provide her with authorization to stay in the US, work (though an I-765) and travel (through the I-131). Instead, she has to wait to become "current" under the Visa Bulletin (see link here btw: http://www.travel.state.gov/visa/bulletin/bulletin_5145.html) and it's not easy to predict how long it will take. I would think certainly before her available H-1B time expires, but also possible 1-2 years. All depends on how quickly the visa bulletin moves in her category. Finally, as discussed above, the civil ceremony followed by wedding is permissible. But be prepared to explain this plan and have good evidence for your case. You consider finding a competent lawyer to help guide you through the process.
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