Can My Out of Status Boyfriend Get H4 Status Through Me?

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Hi GuruImmigration, I am currently an H1B visa holder. I want to marry my boyfriend who’s tourist visa expired in September 2012 (so he’s out of status). My company just informed us that in October 2014, they would petition us if we want to. My question is, If I marry him now, can he adjust his status to H4? If not, once my employer applies for my greencard, can he adjust his status and receive his greencard when I get mine?

Please help!

Answer:

Normally, spouses of H-1B visa holders receive H-4 status.  However, because your boyfriend’s already out of status, he cannot “change status” from tourist visa to the H-4 visa while still in the US after he married you (it’s not “adjust status” because that term is only for going to green card).  He must go back home to try to receive the H-4 visa at the U.S. consulate.  This is why remaining in-status is so important.

The problem is, because he’s been out of status for more than a year by now, he will get the 10-year bar as soon as he leaves the US and tries to apply for admission as an H-4 at the consulate.  The bar means he cannot be admitted back to the US for 10 years from date of departure.  Unfortunately there will be no waiver possible for this, which is only possible if extreme hardship can be shown to a spouse or parent who is a US citizen or legal permanent resident (LPR or green-card holder) when he is denied the H-4.  In this case, you are neither a citizen nor LPR, so no waiver is possible (assuming he doesn’t have a parent who’s a citizen or LPR).

If you manage to receive the green card through your employer in the future, then your future husband will also not be able to adjust status by being a dependent on your case because he’s been out of status for so long.  He’ll have to go home and try to apply for permanent residence there.  However, the 10-year bar will also apply if he leaves the US.  The only difference then will be that you will be an LPR, so the two of you will have to prove that you’ll experience extreme hardship if he is denied the visa to immigrate (due to family separation and other factors). It will be a hard case, but not impossible, and will require attorney assistance.

Follow-up question:

How about this statement I found on another site:

“The dependent spouse and child of an employment-based beneficiary are considered derivative beneficiaries. They are therefore eligible for lawful permanent residence under the same employment-based preference category as the principal beneficiary.”

Follow-up answer:

Yes, that statement would indeed be true when the derivatives are in-status. If the derivatives are out of status while in the US, they cannot adjust when it’s employment-based unless it’s only 180 days or less out of status. Unfortunately, your boyfriend has been out of status for more than a year.

Best,

Larry L. Doan, Esq.

GuruImmigration

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