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Impact of H1B Visa & Marriage

H1B visa holders marrying in the US

What are the immigration implications for H1B holders of getting married in the US?

As an H1B visa holder, your stay in the US is reliant on having H1B eligible employment. Should you decide to marry while working in the US, your immigration status will not change but there will be a number of related factors to consider, largely depending on the status and nationality of your future spouse.

Can I get married in the US with an H1B visa?

Non-US nationals are generally permitted to get married in the US provided they satisfy the legal requirements of the state where the marriage is to take place.

The requirements differ between states, but in general these may include:

  • that you are both at least 18 years of age, although this may vary in some US states;
  • that you are not closely related, e.g. siblings, parents, children and some US states don’t allow first cousins to marry; and
  • that neither of you are currently married.

There will be different implications to marrying in the US as an H1B holder, depending on the immigration status of your spouse-to-be.

Marrying a US citizen: Green Card through family

Marriage to a US citizen or US permanent resident will allow you to change status as an H1B holder by applying for a Green Card.

As a non-US spouse relying on your relationship as the basis for the change in status, you would apply through the ‘Green Card through Family’ category.

While you have H1B eligible employment in the US, you may remain in the country with your spouse during the application process for a Green Card.

You must ensure retain a valid US visa while your Green Card application is being processed. If your H1B visa expires before the Green Card is granted, you are only allowed to remain in the US if your Green Card application is ‘pending’. In this instance, pending doesn’t just mean that your Green Card application is being processed. For a Green Card application to be seen as pending, you must have completed and filed the application in your own name.

There should be no gap in lawful status between the H1B visa and the Green Card being granted or any period when you do not have a relevant visa that allows you to be in the US. This would mean that you are in the US illegally.

Marrying a non-US citizen

Marriage to another H1B visa holder

Should you marry another H1B visa holder, you and your spouse will remain subject to the requirements and benefits of your visas. Your time in the US will still be on a nonimmigrant basis and reliant on holding H1B eligible employment.

One spouse may choose to switch to an H4 dependant visa, either by ending H1B employment or when that H1B employment comes to an end.

Should both H1B visas come to an end and neither visa be renewed, then both of you must leave the US.

Should you retain your H1B status for the full six-year period, working and living in the US during that time, you may then apply for a ‘Green Card through Employment’.

Should you or your spouse be granted a Green Card through employment, then the other spouse may apply for a green card through family.

Eligibility relies on you having a sponsoring employee and meeting with the conditions of one of the following categories:

First preference immigrant worker (EB1)

  • You have ‘extraordinary ability’ in science, the arts, education, athletics or business, or
  • you are an ‘outstanding’ researcher or professor, or
  • you are a multinational executive or manager meeting certain criteria.

Second preference immigrant worker (EB2)

  • You are a member of a profession that requires an advanced degree, or
  • you have ‘exceptional ability’ in the arts, science or business, or
  • you are seeking a national interest waiver.

Third preference immigrant worker (EB3)

  • You are a skilled worker, with a minimum of 2 years training or work experience, or
  • you are a professional where your job requires at least a US bachelor’s degree or a foreign equivalent, and you are a member of the related profession, or
  • you are an unskilled worker who will perform unskilled labour requiring less than 2 years training or experience.

US visa options for non-US spouses

If you are an H1B visa holder and you are marrying a non-US national who requires a visa to join you in the US, the visa options for your spouse will depend on their circumstances.

The K1 visa, for example, is a nonimmigrant visa for foreign nationals who travel to the US to get married, but it only applies where the individual is marrying a US citizen. Since an H1B holder cannot be a US citizen, the fiancé(e) visa is not suitable in this instance.

B2 visitor visa

As an H1B visa holder, your fiancé(e) may be able to use the B2 visa for the purpose of entering the US to marry. However, proof will be required by the issuing embassy or consulate and immigration officials that your fiancé(e) intends to return home after the marriage.

Travelling to the US on a B2 visa with the intention of marrying and staying to apply for a green card, for example, would be seen by US immigration authorities as a form of visa fraud. The B2 visa is a non-immigrant visa that must carry the intention to return home once the visa comes to an end.

Equally, using the visa waiver programme to enter the US to get married and then apply for a green card is not allowed either.

Once the marriage has taken place, your new spouse will be required to leave the US before their visitor visa expires. To rejoin you in the US as your spouse, they would look at making an application for the H4 dependant visa from their home country.

Take specialist legal advice to ensure that your fiancé(s) holds the relevant visa before and after your marriage, that the correct visa-related documentation is compiled, and to check exactly how your marriage will impact on the immigration status of both you and your spouse. Ensuring you and your loved one hold the valid immigration status will be critical since any issues can impact your eligibility for future USCIS applications.

H4 visa for H1B spouses

Once married, the non-US national spouse of an H1B holder may apply for an H4 dependant visa. They may only remain in the US while they hold an appropriate visa, whether that be the original B2 tourist visitor visa, the H4 dependant visa or an employment-related visa.

H4 status relies on being a dependant of an H1B visa holder. An H4 status spouse may only work in the US once they have obtained an Employment Authorisation Document (EAD).

Should you have to renew your H1B visa, the H4 holder will have to renew theirs too. Should your H1B visa come to an end and you have to leave the US, the H4 visa will also come to an end and the related spouse must leave the US too.

Should you become a US citizen or US lawful permanent resident following your H1B visa period, your spouse may then apply for a Green Card through family.

Need assistance?

Take specialist legal advice to ensure that your fiancé(s) holds the relevant visa before and after your marriage, that the correct visa-related documentation is compiled, and to check exactly how your marriage will impact on the immigration status of both you and your spouse. Ensuring you and your loved one hold valid immigration status will be critical since any issues can impact your eligibility for future USCIS applications.

This article does not constitute direct legal advice and is for informational purposes only.

By Nita Nicole Upadhye

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