On our subsection category of "Immigration Through Marriage" we received a comment asking for further clarification. The comment was as follows: "What happens AFTER the interview and you’re told you must wait for a name check? Is there any way any of the attorney services out there could help expedite this process? Also, what happens after the interview, and your spouse’s H1B status comes to the 6 year limit? will he/she have to leave the country even with the green card pending? will he/she be able to continue to work?"
Name and background checks are supposed to be completed before the applicant is interviewed. I would say that in about ten percent of cases, this is not done. When it has not been completed, these checks can take anywhere from weeks to years to resolve. It is no USCIS that completes these checks, but rather another agency. Therefore, when one is told that their case is being held up as a result, there really isn’t anything that the immigration officer can do about it. Someone in each office is assigned to check on these cases once per week for any updates. Other than waiting for the results, one could institute a Mandamus action against the government to in effect push them into obtaining the needed results rather than sitting on it endlessly.
The commenter’s second question asks about how his or her foreign spouse will be able to work after H-1B visa status expires. Whenever you have an adjustment of status case pending, you have the right to apply for an employment authorization document (work permit). This card allows you to work anywhere in the US and is not limited to a specific employer and specific job as is the H-1B. The commenter’s spouse would be best advised to apply for a work permit as soon as possible and it will allow him or her to continue to work with the greatest amount of flexibility.
As always, we invite our readers to comment on our blog and as always, we’ll do our best to answer your questions.