Immigration Corner | How will this filing affect my work permit?

Dear Mrs Walker-Huntington,

I am currently in the United States on an H2B work visa. I also have a regular B1/B2 visa. My wife is a green card holder and wants to file for me to also become a permanent resident. However, I want to go to Jamaica next summer.

My question is, if she submits my filing, would I need to go back to Jamaica to complete the process, and, also, would I be able to obtain a new work permit after I leave the US? Would I have to remain in the US once the process has started?

– D.B.

Dear D.B.,

As a green card holder, your wife can file for you to also become a permanent resident of the United States. However, you can only change your status with a permanent resident spouse if a visa is immediately available for you, i.e., when your category is current and you are in legal status in the United States.

When a permanent resident files for their spouse, the filing is assigned to the F2A preference category to wait until a visa becomes available. That category is current, which means that technically a visa is available for everyone who is a beneficiary in that category. However, it is possible for that category to return to a waiting period. If you are in the United States and have overstayed your status, you would not be eligible to change your status.

It is more prudent when your spouse is a permanent resident than the beneficiary consular process. A work permit would only be issued if you could change your status. If your H2B visa/contract will expire, it is hardly likely that you would receive another H2B visa with a permanent resident or US citizen spouse because of the presumption to migrate.

You could safely change your status to a permanent resident if your spouse becomes a US citizen, you are in the United Status pursuant to lawful entry, and you file after 90 days of arrival. This can be done even if you have overstayed. If you file to change your status while you are in-status, that is, have not overstayed your period of stay, you must obtain permission to travel while your change-of-status application is pending. If you leave without permission while the application is pending, the application will be deemed abandoned.

Please consult with an immigration attorney to get all the nuances you need to discuss in your matter.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com