Can an H1B visa husband have his out of status wife andchild be his dependents if he applies for a green card?

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Can an H1B visa husband have his out of status wife andchild be his dependents if he applies for a green card?

Asked on September 21, 2011 under Immigration Law, California

Answers:

SB, Member, California / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If the wife and children are out of status, they will not be eligible for adjustment of status within the US when it is time for the principal H-1B holder (husband/father) to apply for the adjustment of status.  The husband/father will be able to adjust status but his dependents will not be.  Depending on the length of the overstay, the dependents may be able to go back to their home country and consular process for their immigrant visas once the husband/father adjusts status.  However, if they had overstayed by more than 180 days, they will be barred from reentry for 3 years; if their overstay was more than 1 years, they will be barred for 10 years.  If they do not depart the US at all, the earliest they will be able to adjust status will be when the husband/father becomes a US citizen, assuming the dependents entered the US lawfully AND assuming the children will still be under the age of 21 when the father naturalizes.


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