Should we get married now and I should apply for a petition for my fiance to come? 7 Answers as of June 18, 2013

I am a permanent resident of the US (green card holder). I want my fiance to move here so we can get married. He lives in Peru and he only has a tourist visa. The thing is he's a doctor and he's coming here to start his residency training, which means he would need a J1 visa or a H1B visa. However, I know with an J1 visa you are supposed to go back to your country for 2 years after your training, so I don't think it would be appropriate. My questions are: Should we get married now and I should apply for a petition for him to come? Or should I ask him to apply for a H1B and then re-adjust his status? Also, is it possible for him to come on a tourist visa to get married or does he need to apply for another kind of visa? And one more thing, I will be ready to naturalize on January 2015. Thanks in advance.

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Law Offices of Svetlana Boukhny
Law Offices of Svetlana Boukhny | Svetlana Boukhny
He should strive for the H-1B visa if possible and not get the J-1 visa. You can petition for him but if you are only a green card holder, it is currently taking about 2-3 years for a spouse of a green card holder to qualify for an immigrant visa.
Answer Applies to: California
Replied: 6/18/2013
Walker & Ungo Law Firm
Walker & Ungo Law Firm | Gabriela Ungo
You are right, a J-1 visa will subject him to the 2 year foreign residence requirement or a J-1 visa waiver. If a program sponsors him for an H-1B, he should not have a problem filing a petition for alien relative then adjusting status to permanent residence (once his priority date is current) since H visas are a "dual immigrant intent" visa. He can maintain his H-1B status while his permanent residence petition is being processed. I would not advise you to get married and then enter on a B2 visa though, since he would have to overcome INA 214(b) or the immigrant intent presumption: "Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status?". Also, if your I-130 petition is still pending at that time that your naturalization is approved, it will automatically convert to a immediate relative case and an immigrant visa or green card will be immediately available.
Answer Applies to: Mississippi
Replied: 6/17/2013
Pacifica Legal Services
Pacifica Legal Services | Floyd Fernandez
I would not marry him now, for that would jeopardize his eligibility to get his residency. Petitioning for him would mean he shows up at the U.S. port of entry with a petition for his permanent residency on file, when his J-1 or H-1B would be saying he intends to return to Peru. An interviewing customs agent would assume that he intended to commit a fraud, badly complicating the situation. What surprises me is that the teaching hospital that has hired him for his residency has to have obtained one of those two visas. An H-1B in particular could be applied for at any time, for one petitioned for by a health-care institution would be exempt from the 85,000 per year limit imposed by law. That is the best route.
Answer Applies to: California
Replied: 6/15/2013
Law Offices of Grinberg and Segal
Law Offices of Grinberg and Segal | Alexander Segal
I will try to answer the questions in the order you have asked. (1) You can marry now and petition for him to receive an immigrant visa. Assuming you marry in the U.S., he cannot remain in the U.S. while the case is processing unless he maintains valid non-immigrant status (i.e. he cannot marry you and just stay here illegally). (2) He could try to obtain an H-1B visa; however, unless he finds a cap exempt employer, he will not be able to seek on until the next fiscal year. There are no more visas available for the fiscal year that starts October 1, 2013. (3) He can travel to the U.S. on a tourist visa to marry you. However, he cannot do so with the intent to remain and seek lawful permanent residence. You cannot ask for a fianc? visa as only U.S. citizens may petition for such visas.
Answer Applies to: New York
Replied: 6/14/2013
Law Office of Eric Fisher | Eric Fisher
You must be a US citizen in order to petition for a fiance. Even if you marry him first, he will need to wait years before an immigrant visa is available. He should consult with an immigration attorney regarding his other options.
Answer Applies to: Colorado
Replied: 6/14/2013
    Richard S. Kolomejec, Attorney at Law
    Richard S. Kolomejec, Attorney at Law | Richard S. Kolomejec
    The best situation would be for the permanent resident to get US citizenship. As a citizen, you can give your spouse a green card in about 3 months. I would wait until the fiance is in the US before getting married. And I would wait a couple of months after the entry before doing the paperwork. You should consult with an experienced immigration attorney before doing anything including getting married.
    Answer Applies to: California
    Replied: 6/14/2013
    Immigration Law Offices, LLP
    Immigration Law Offices, LLP | Fakhrudeen Hussain
    He can come here on H1B, you can marry when he is here if that is what you want to do. Once you become a citizen and he is here on H1B, you can petition for him and he can adjust.
    Answer Applies to: California
    Replied: 6/14/2013
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