QUESTION
Can I petition for a I-130 visa while my spouse has a H-2A visa?
Asked on May 04th, 2014 on Immigration - Texas
More details to this question:
I recently got married in mexico and want to petition for my spouse to come to the u.s. but in august hes going to come to the u.s. with a H-2A visa. This will be his second year coming with a H-2A visa. If i petition for a I-130 visa will he still be able get his H-2A visa or will i have to wait to file the petition?
2 ANSWERS
He may have a problem entering as a nonimmigrant if he has immigrant intent shown by the I-130 filing. You can file the I-130 after he is already in the US.
Answered on May 14th, 2014 at 11:42 AM
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Unfortunately, holders of H-2A visas are not permitted to have dual intent, which means they cannot enter the US with a H-2A visa and at the same time be actively seeking permanent residency. Thus, the filing of an I-130 petition may prevent him from entering the US with his work visa. It's probably a better idea for him to apply for adjustment of status after he enters with the work visa. He should wait at least 90 days after entry before he concurrently files the I-485 application and I-130 petition. It is best to file the forms while he is still in valid status, but they can be filed even after he falls out of status.
Answered on May 05th, 2014 at 12:17 PM