H1B Visa Holder married to US citizen (90 day rule)

[Mowglee]

I have been working in the US for the last 5 years on H1-B visa. My H1-B with a new employer has been pending for about 6 months now. I am married to a US citizen. We have been in relationship for about 3 years before we our marriage. A month before my wedding, we went to Mexico for a weekend trip. we did not file family based green card application yet. I only learnt about 90 day rule a few days back. What are my chances of getting an Adjustment of Status approved, if i file for it.

On the other hand, If my H1-B petition is approved, Can i go to home country and apply for H1B visa and come back. In the DS160 form, I have to provide my Spouse's information.
Will it be a problem if my spouse is a US citizen?

[scientist2016]

There is no 90 day rule for AOS. H1B is a dual intent visa. So having an American spouse does not affect your chances one way or other.

[Mowglee]

Thank You! I really appreciate your response.

Although H1B is a dual intent visa, as much as i have gathered it applies only if the employer files an immigrant petition. My Employer has not filed an immigrant petition for me.

I would like to apply for family based green card. The below article and a few other articles point to the risk

https://www.ebglaw.com/news/the-new-90-day-rule-could-impact-holiday-travel-by-f-1-opt-employees/

"Under this new and more robust 90-day rule, anyone in F-1 OPT, TN, E-3, H-1B1, O-1, or any other temporary visa status who files a change of status application to H-1B or another status within 90 days of entry into the United States runs the risk that the government..."

[scientist2016]

Thank You! I really appreciate your response.

Although H1B is a dual intent visa, as much as i have gathered it applies only if the employer files an immigrant petition. My Employer has not filed an immigrant petition for me.

I would like to apply for family based green card. The below article and a few other articles point to the risk

https://www.ebglaw.com/news/the-new-90-day-rule-could-impact-holiday-travel-by-f-1-opt-employees/

"Under this new and more robust 90-day rule, anyone in F-1 OPT, TN, E-3, H-1B1, O-1, or any other temporary visa status who files a change of status application to H-1B or another status within 90 days of entry into the United States runs the risk that the government..."

A dual intent visa is a dual intent visa. There is no rule that only the employer can file within a certain time period. The link you posted is not from any official USCIS communication so cannot comment on it.

[Enub4]

The risk, in your case, is 0 (or at least pretty close to that). The "rule" is for people that get a visa just to be able to get into the USA and then change status.

Lived here for 5 years with H1B and having a relationship for close to 3 years: you will not get into any problem for a trip to Mexico before the wedding.