Entering the U.S. on a K-1 fiancé(e) visa marks a major step for couples planning their future together. But for foreign fiancé(e)s, one big question often follows:
Can I leave the United States once I enter on a K-1 visa?
The answer is more complicated than many expect. While the K-1 visa allows for entry into the U.S. to get married, it does not allow free travel outside the country. Leaving without the proper authorization can cancel your immigration process altogether. The U.S. citizen sponsor plays a crucial role in this process, as their legal responsibilities and the relationship with their foreign-citizen fiancé(e) are central to the visa’s conditions.
This guide breaks down:
Are you preparing to travel to the United States on a K-1 fiancé visa? It’s an exciting moment—but also one where you need to be aware of the visa’s limitations and immigration rules. Missteps during your travel or after your arrival can lead to delays or even denial of entry. Adhering to Department of Homeland Security regulations is essential to ensure a smooth process.
Below we provide new updates and links to important resources to make the K-1 travel process easier to understand and navigate.
A K-1 visa allows a foreign-citizen fiancé(e) of a U.S. citizen to enter the United States to get married within 90 days of arrival.
| Step | Process |
|---|---|
| 1 | Submit Form I-129F to USCIS |
| 2 | After approval, USCIS forwards your case to the National Visa Center (NVC) |
| 3 | File Form DS-160, the official online nonimmigrant visa application, and attend a K-1 visa interview at a U.S. embassy/consulate |
| 4 | Receive your K-1 visa upon successful interview. A consular officer will assess your eligibility and provide necessary documentation during the interview. |
| 5 | Travel to the U.S. within the visa’s validity (usually 6 months) |
Note: You can only enter the U.S. once your K-1 visa is approved—not just after your I-129F petition is accepted by USCIS.
Learn more about the K-1 visa process from USCIS:USCIS I-129F Page
Getting engaged to a U.S. citizen or green card holder is a huge step. But visiting your fiancé in the United States—especially before you’re married or hold the correct visa—can be tricky.
Whether you’re planning a short trip or considering your immigration options, it’s important to understand the issues invovled.
Yes, it’s possible—but you must be honest and careful.
If your fiancé hasn’t yet filed Form I-129F (the K-1 petition) on your behalf, the U.S. government has no record of your intent to immigrate. You can visit on a B-2 tourist visa or Visa Waiver Program (ESTA) if eligible.
However, you must be truthful at all times:
What to bring to show strong ties to your home country:
Lying or misrepresenting your intentions is considered visa fraud and can permanently harm your immigration eligibility.
Learn more:
Visitor Visa Overview (B-2)
ESTA Program Eligibility
Once your U.S. fiancé(e) submits Form I-129F, your situation changes.
The U.S. government will now know you’re planning to immigrate—and that can conflict with the intent of a tourist visa or ESTA visit.
Why this matters:
Even though there’s no official rule against visiting during this time, CBP (Customs and Border Protection) and consular officers often deny entry if they suspect you won’t return home before your visa expires. The consular officer plays a crucial role in assessing visa applicant eligibility during this process.
What can help you gain entry:
Understanding immigration law is essential for those navigating the K-1 visa process.
|
Stage |
Can Visit U.S.? |
Recommended? |
| Before Form I-129F is filed | Yes (tourist/ESTA) | Yes, with caution |
| After Form I-129F is filed | Technically yes | Not recommended |
| After K-1 visa is issued | Only for single entry | Yes, for marriage only |
For more details, including strategies to mitigate risks, contact an experienced immigration lawyer.
Always consult an immigration attorney before attempting travel on a non-K-1 visa if you’ve filed for a K-1, or plan on filing in the future.
Yes, it’s legally possible—but risky.
If you enter the U.S. on a B-2 tourist visa or ESTA and get married shortly after arrival, USCIS will question your original intent. If they believe you planned to marry and stay all along, your green card could be denied for visa fraud.
If you:
within 90 days of entering the U.S. on a tourist visa, your case will be closely examined.
How to reduce the risk:
Adjusting status to apply for permanent residence is crucial for those entering the U.S. on a K-1 nonimmigrant visa. This involves completing necessary steps such as medical examinations and ensuring marriage to a U.S. citizen within the specified timeframe.
More info: USCIS Policy Manual – 90-Day Rule and here.
In most cases, the safest path is applying for a K-1 visa before entering the U.S.
If you’re unsure, it’s always smart to consult with an immigration attorney or explore guided services.
No. While receiving a K-1 visa is a major milestone, it does not guarantee entry into the United States.
At the U.S. port of entry, Customs and Border Protection (CBP) officers will inspect your documents and decide whether to admit you.
CBP officers have broad discretion. If they find inconsistencies, criminal concerns, or anything suspicious, they may deny entry.
For tips on what to expect at the airport, read:
What to Expect at a U.S. Port of Entry
Yes. Children of a K-1 visa holder can receive a K-2 visa, allowing them to accompany or join their parent in the U.S.
Important notes:
If the child doesn’t enter within the validity period, you’ll need to start over with the K-2 process, or pursue other options, such as potential immigrant visa, which can take years.
Once your K-1 visa is approved, you usualy have up to 6 months to enter the U.S. The 6-month validity is printed on your visa.
Don’t delay:
If you don’t enter within those 6 months, the visa expires, and you’ll need to reapply from scratch.
If you’re unsure about your timing, consult with an immigration attorney to avoid complications.
The K-1 visa allows a foreign national engaged to a U.S. citizen to enter the U.S. for the purpose of marriage. But here’s the catch:
Once you enter the U.S. and go through inspection at a port of entry (like an airport), your K-1 visa is considered used. If you leave the country before marriage or before filing your green card paperwork, you may not be allowed back in—even in emergencies.
The K-1 visa is not a tourist visa. It’s a “single-use” visa issued only to allow entry for marriage purposes. The U.S. government wants to ensure:
Once you’re in the U.S., you’re expected to:
Only after filing Form I-485 (green card application) and receiving travel permission can you safely leave the U.S.
You and your U.S. citizen fiancé must get married within 90 days of your arrival.
You can stay in the U.S. while your green card is pending—but remember, you’re not allowed to work or travel until the proper documents are approved.
Learn more: Green Card Through Marriage Guide
You cannot reenter the U.S. with the same K-1 visa. If you leave before:
You’ll likely be denied reentry at the border.
This could result in:
Ana, a Brazilian citizen, enters the U.S. on a K-1 visa in May. Before marrying, her father gets critically ill in Brazil. She leaves the U.S. without applying for travel authorization.
When Ana tries to return weeks later, she’s denied boarding at the airport. Her K-1 visa is now invalid. Her fiancé must file a new petition, delaying her return by months and costing thousands.
Even if you’ve gotten married within the 90 days, you still cannot travel outside the U.S. until you get Advance Parole.
Planning a honeymoon abroad?
You’ll need to apply for Advance Parole if you want to travel internationally before your green card is approved.
You must:
You can file these forms together. The travel document typically takes 12 months or more to be approved.
Only after receiving Advance Parole can you travel and return to the U.S. without abandoning your green card application.
Advance Parole is a special permission from U.S. Citizenship and Immigration Services (USCIS) that allows certain immigrants, including K-1 visa holders with pending green card applications, to travel outside the U.S. and return legally.
To apply:
Note: It is often taking USCIS more than 12 months to adjudicate the I-131 petition for advance parole.
Check USCIS processing times for the latest updates
Warning: If you leave the U.S. without approved Advance Parole while your I-485 is pending, you will have abandoned your I-485, and will not be able to return until as immigrant visa becomes available via the embassy (which could take years).
Important: Advance Parole is not a reentry guarantee. U.S. Customs and Border Protection (CBP) officers can still deny you at the port of entry if they suspect fraud or other issues.
Learn more about Advance Parole
Yes, rare exceptions exist for emergency situations like:
In such cases, you can request an Emergency Advance Parole appointment through a local USCIS field office.
Contact USCIS by calling 800-375-5283 or visit your nearest field office for instructions. May require a USCIS appointment request through the new “My Appointment” tool
Still, there’s no guarantee your emergency request will be granted in time.
Note: As of April 1, 2024, USCIS now charges an additional fee for filing Form I-131 as part of an adjustment of status application.
No. While it authorizes travel, final entry approval is still up to the CBP officer at the port of entry.
They can deny you if they:
Always carry:
Even if you have Advance Parole, think twice before traveling:
Leaving without Advance Parole can result in:
Usually no, but here’s a rare exception.
If you travel to Canada, Mexico, or certain Caribbean islands for less than 30 days, and:
You may be eligible for Automatic Visa Revalidation.
Learn more: CBP Automatic Revalidation Info
Warning: Most K-1 visa holders are not advised to rely on this. Always consult an attorney first.
If you don’t marry your petitioner fiancé within 90 days:
If you marry after the 90 days, your US spouse will need to file an I-130 petition along with the I-485.
Yes. Once you’ve entered the U.S., you can travel freely between states. You should always maintain status.
Yes, but rules vary by state. Visit your local DMV office and bring:
The license may be valid only until your K-1 or I-94 expires.
Violating travel rules as a K-1 visa holder can lead to:
Even a good-faith mistake can have serious consequences. Immigration officers may view it as a violation of visa terms.
To avoid putting your future at risk:
You’ll gain full international travel freedom when you:
Until then, even brief travel abroad requires legal permission.
Here’s how the travel timeline plays out:
|
Stage |
Travel Outside U.S. Allowed? |
| After visa is issued, before entry | Yes, but only to the U.S. once |
| After entering U.S., before marriage | No — travel will cancel visa |
| After marriage, before AP approval | No — leaving without AP cancels case |
| After AP approval | Yes, temporary travel allowed |
| After green card approval | Yes, can freely travel as a permanent resident |
Can I visit my U.S. fiancé(e) on a tourist visa before filing a K-1 petition?
Yes, you can visit on a B-2 tourist visa or through the Visa Waiver Program (ESTA), as long as you can prove to the U.S. government that your visit is temporary and you plan to return to your home country.
Will visiting my U.S. fiancé(e) affect my chances of getting a K-1 visa later?
Not directly. However, if you overstay your tourist visa or are found to have misrepresented your intentions, it could hurt your future visa eligibility.
Do I need to disclose that I’m engaged when applying for a tourist visa?
Yes. You must always be truthful about your relationship status and plans. Failure to disclose that you are engaged could be viewed as misrepresentation.
Will my tourist visa be denied if I say I’m visiting my fiancé(e)?
Possibly. The officer may suspect you have immigrant intent. You must provide convincing evidence that you plan to return home after the visit.
Can I travel back and forth to visit my fiancé(e) multiple times?
You can, but frequent visits may raise red flags about your long-term intentions. CBP officers might suspect you’re living in the U.S. on a tourist visa.
Can I marry my fiancé(e) while visiting on a tourist visa before filing a K-1?
Yes, but doing so and then applying for a green card could raise serious issues with USCIS if they believe you misrepresented your original purpose for entry.
Can I visit the U.S. while my K-1 petition is being processed?
Technically, yes. But it’s often discouraged because the pending K-1 petition shows immigrant intent, which conflicts with the temporary intent required for tourist visas.
Will I be allowed entry if I have a pending K-1 visa application?
It depends. CBP officers at the port of entry may deny you entry if they suspect you plan to stay in the U.S. permanently before your K-1 is approved.
Can I apply for a tourist visa after my fiancé(e) files the I-129F?
You can apply, but approval is not likely. Officers may deny your tourist visa application if they believe you intend to bypass the K-1 process.
What documents can help prove I will return home during a visit?
Bring evidence of employment, school enrollment, property ownership, family ties, and a round-trip ticket to demonstrate your intent to leave before your visa expires.
Is it better to wait until the K-1 is approved before traveling?
In most cases, yes. Waiting until you receive the K-1 visa avoids the risk of being denied entry or delaying your immigration process.
Can I be denied entry even if I hold a valid B-2 visa or ESTA?
Yes. Even with a valid visa or ESTA, CBP can deny entry if they believe you intend to overstay or adjust status without the proper visa.
Can I leave the U.S. and return on the same K-1 visa?No. The K-1 visa is single-entry only. If you leave the U.S., you cannot reenter using the same K-1 visa.
The K-1 visa is a nonimmigrant visa, which allows temporary stay in the U.S. for the purpose of marriage.
Can I travel internationally before getting married in the U.S.?Not without Advance Parole. Leaving the U.S. before marriage and without travel authorization will likely cancel your K-1 status and require you to start over.
What if I need to leave the U.S. for an emergency before getting married?You can request an emergency Advance Parole by filing Form I-131 and explaining your situation to USCIS. However, approval is not guaranteed and processing is rarely fast.
Can I travel to Canada or Mexico for a short trip before I get married?Not without risk. Automatic visa revalidation within the I-94 validity period is risky — and generally does not apply to K-1 holders. Leaving the U.S., even briefly, may cause loss of status.
What happens if I leave the U.S. before my wedding?Your K-1 status will be considered abandoned, and you will likely need to start the entire fiancé visa process again.
Can I get a driver’s license while waiting to get married?Yes, in most states, K-1 visa holders can apply for a temporary driver’s license using their visa, passport, and I-94 record. Rules vary by state.
Can I travel internationally after getting married but before getting my green card?
Only if you have an approved Advance Parole document. Leaving the U.S. without it will cause USCIS to cancel your pending green card application.
What is Advance Parole and how do I apply?
Advance Parole is a travel document issued by USCIS that allows you to reenter the U.S. while your green card application is pending. You apply using Form I-131, either with or after filing Form I-485.
Is there a fee for Advance Parole?
As of April 2024, a separate filing fee is now required unless bundled with the I-485 green card application before that date. Check the USCIS fee schedule for current fees.
Can I leave the U.S. while waiting for my biometrics appointment?
Not recommended. If you miss your appointment, your green card process may be delayed or denied. Rescheduling is possible but often time-consuming.
Will Advance Parole guarantee reentry to the U.S.?
No. While Advance Parole allows you to travel, reentry is still up to the discretion of CBP officers at the port of entry. Issues like past immigration violations or fraud can still lead to denial.
How long does it take to get Advance Parole approved?
It generally takes 12, though processing times vary. You can track status using the USCIS case status tool. You can also seek expedited processing in the event of an emergency
Can I travel for my adjustment interview abroad and return in time?
No. You should remain in the U.S. throughout your adjustment process, especially near biometrics and interview dates.
Can I apply for a new K-1 visa if I abandon my current one?
Yes, but your fiancé(e) will need to file a new Form I-129F and start the process over, which can take several months.
Does my nationality affect how USCIS or CBP treats my travel?
Yes. Visitors from Visa Waiver countries or those with low visa overstay rates may face fewer issues. Those from countries with high fraud or overstay rates may face tougher scrutiny.
Can I use a different U.S. visa while waiting for the K-1?
Technically, yes. But using a tourist visa or ESTA while intending to immigrate can be considered visa fraud.
Will traveling frequently to the U.S. affect my K-1 application?
Possibly. Repeated U.S. visits may raise red flags about your long-term intentions and could lead to additional questioning or denials at the border.
Is there any risk in staying in the U.S. past the 90-day K-1 window if we’re not yet married?
Yes. If you don’t marry within 90 days of entering on a K-1 visa, you will be out of status and subject to removal (deportation). You cannot extend the K-1 visa period.
Can I work while on a K-1 visa?
Only after applying for and receiving work authorization (EAD) by filing Form I-765.
K-1 visa holders must navigate travel restrictions carefully. While you can:
You cannot leave the country and return without special authorization.
To protect your immigration journey:
Understanding travel limitations under the K-1 visa is crucial. A qualified immigration attorney can:
We assist with:
Herman Legal Group has over 30 years of experience helping couples navigate complex immigration journeys.
Herman Legal Group provides personalized support throughout the K-1 and green card journey.
Book a Consultation:
Helpful Links and Resources
Facing deportation can feel like your life is being turned upside down. But if you’re in removal proceedings, you may not be out of options. One of the most important tools to stop deportation—and possibly gain lawful status—is a legal remedy known as Cancellation of Removal.
Cancellation of removal is a powerful legal remedy in U.S. immigration law that allows certain non-citizens—both lawful permanent residents (LPRs) and undocumented individuals—to stop deportation and obtain legal status. If approved, it converts a person’s status from “deportable” to “lawfully admitted for permanent residence.”
This form of relief is granted at the discretion of an immigration judge, based on the immigrant’s background, family ties, and the hardship their removal would cause.
In this guide, you’ll learn what cancellation of removal is, who qualifies, how the process works, and what forms and evidence you’ll need to file a strong case.
Removal proceedings are the legal process the U.S. government uses to deport noncitizens. These hearings take place in immigration court and are handled by the Executive Office for Immigration Review (EOIR).
Removal proceedings may begin if:
In rare cases, even naturalized citizens can face removal if the government claims fraud in their application.
Learn more: EOIR Overview – U.S. DOJ
Warning: If you miss a hearing, the judge can issue a removal order in absentia, meaning you’ll be deported without being present.
Deportation orders are issued by Immigration Judges.
If you or a loved one is facing deportation, consult a qualified immigration attorney immediately.
Under the Immigration and Nationality Act (INA) §237, immigrants can be placed in removal proceedings for:
Everyday actions can also cause issues, such as:
Relief from removal is a legal defense you can request to stop or delay deportation. You may qualify for multiple types of relief depending on your circumstances. Some result in permanent residency, while others provide time to prepare or apply for another legal status.
Cancellation of Removal is a type of legal relief that allows certain immigrants—both lawful permanent residents (LPRs) and undocumented individuals—to avoid deportation and either keep or obtain lawful status. Removal cancellation is a provision under the Immigration and Nationality Act (INA) that serves as a relief mechanism for aliens in removal proceedings, highlighting eligibility criteria for both permanent and non-permanent residents.
This relief is discretionary, meaning it’s up to the immigration judge to decide whether to grant it, even if you meet all the eligibility requirements.
There are three main types of cancellation of removal, each with different requirements:
Let’s break down each of these programs.
Before we dive into the requirements of the various cancellation categories, let’s look at why this program is so important now.
Trump’s administration has initiated a mass deportation effort to arrest and deport millions of immigrants.
The hardline enforces in the White House have dramatically expanded deportation operations, using:
According to Migration Policy Institute, nearly 11.3 million undocumented immigrants were living in the U.S. in 2022. A majority—7 million—have been in the country for over a decade.
That’s where Cancellation of Removal becomes one of the most powerful and necessary forms of defense.
There is a statutory cap of 4,000 approvals per year for non-LPR cancellation of removal. Once that cap is reached, cases may be delayed, even after the immigration judge approves the application.
Only 7% of pending immigration court cases involve cancellation of removal, even though millions may qualify.
These numbers underscore why eligible immigrants must act now—and why immigration advocates and attorneys need to proactively screen their clients for eligibility.
Cancellation of removal is not automatic—even if you meet the legal requirements. Immigration judges have broad discretion and weigh factors like:
Positive factors may tip the balance in your favor.
The court may also consider negative factors like prior immigration violations, false claims to citizenship, or repeat criminal behavior.
The judge must look at the totality of circumstances—all hardship factors combined—not just one issue in isolation.
See the EOIR data portal:
Immigration Court Statistics – EOIR
Now let’s dive into the key requirements for Cancellation of Removal cases.
T To qualify under INA § 240A(a), you must meet all of the following:
If granted, the applicant retains her/his green card.
Note: Even if a crime isn’t considered a felony under state law, it may still count as an aggravated felony for immigration purposes under INA §101(a)(43).
Learn more: List of Aggravated Felonies – INA §101(a)(43)
As discussed below, certain criminal acts will “stop” the accumulation of continuous presence.
If you are undocumented or entered without inspection, you may be eligible under the 10-Year Rule under INA § 240A(c).
To qualify, you must prove:
Under INA § 240A(c), certain individuals are not eligible for this relief. You cannot apply if you:
Even if all requirements are met, immigration judges have full discretion to approve or deny the application.
Do not file a non-LPR cancellation case just to try and stop deportation unless you are already in removal proceedings and has a strong case. These cases are difficult to win, especially due to the requirement of proving “exceptional and extremely unusual hardship.”
Important: The 10-year period stops as soon as you are served with a Notice to Appear (NTA) or commit certain crimes. This is known as the “stop-time rule.”
If granted, the applicant receives a green card.
Get the official statute here:
INA §240A – Cancellation of Removal
Read More:
Also known as 3-Year Cancellation, this version is for survivors of domestic abuse, including:
You do not need to be married to the abuser or even still living with them to qualify.
If granted, the applicant receives a green card.
The cancellation process has two stages in immigration court:
If you are in removal proceedings and believe you qualify, here’s what to file:
|
Document |
Purpose |
| EOIR-42A | For LPRs applying for cancellation of removal |
| EOIR-42B | For non-LPRs applying for cancellation of removal |
| G-325A | Biographic information |
| Filing fee ($100) or Form I-912 | Request to waive the fee |
| Biometrics fee ($85) | For fingerprinting and background checks |
| Passport photos (2) | One for the court, one for DHS |
| Certificate of Service | Proof that both the court and DHS received your application |
| Supporting evidence | Medical records, tax returns, school transcripts, letters, etc. |
For non-LPRs, 10 years of continuous physical presence is required.
The 10-year countdown stops when:
If your NTA lacks a specific date/time, recent rulings (e.g., Pereira v. Sessions, 2018) may mean the stop-time rule was not triggered. This can be critical for your case.
Exceptions:
Military service members with at least 24 months of honorable U.S. service, and some pre 1997 deportation cases, may be exempt from this requirement.
The 10-year clock ends the day you’re issued a Notice to Appear (NTA). Time after receiving the NTA doesn’t count. You can use documents like:
Note: Brief departures (under 90 days at a time, and less than 180 days total) may not break continuous presence.
Proving exceptional and extremely unusual hardship to a qualifying relative is one of the toughest requirements for non-LPR cancellation. This is a very high standard. It means your qualifying relative must face hardship that goes well beyond normal difficulties of family separation.
According to Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), judges must consider factors like:
Only a qualifying relative:
Standard is very high—ordinary hardship is not enough.
In Matter of Recinas, a single mother of six U.S. citizen children won cancellation. Her case showed:
This case set an important precedent and shows how thorough documentation of hardship can
1. Medical Condition – Peanut Allergy
A child’s life-threatening peanut allergy was key in a successful case. The judge was convinced that:
2. Caregiver Burden – Teen with Disabled Sibling
In another case, a mother was the sole caregiver to her adult disabled son. While he wasn’t a qualifying relative due to age, the judge approved cancellation because:
Judges look at the total impact on the qualifying relative. A compelling hardship narrative and strong documentation can make or break your case.
Common Challenges and Tips for Success
|
Challenge |
Tip for Overcoming It |
| Proving 10 years of presence | Gather old pay stubs, school records, lease agreements, medical records, or affidavits from community members |
| Demonstrating good moral character | Collect letters from employers, religious leaders, neighbors, and community organizations |
| Showing exceptional hardship | Document medical needs, school records, therapy reports, and economic dependency |
| Time limits / child aging out | Request expedited decision if a child is turning 21 soon |
The qualifying child must still be under 21 on the date the judge finalizes the grant. Matter of Isidro, 25 I&N Dec. 829 (BIA 2012)
To qualify for cancellation, applicants must prove 10 years of Good Moral Character, separate from the 10-year physical presence. Even if a convition is not an aggravated felony and is not a statutory bar, it could negatively impact the good moral character determination.
Certain convictions will bar immigrants from non-LPR cancellation of removal and other forms of relief. Other convictions will not bar relief, but negatively impact the determination of good moral character.
Aggravated felonies are bars to all cancellation cases. Defined broadly in INA §101(a)(43). Includes:
Vague but includes crimes involving:
Important:
Even a single CIMT with a potential sentence of one year can make a non-LPR ineligible.
You cannot apply if you’ve been convicted of:
A single CIMT conviction may not bar eligibility if:
Example: Harry qualifies; Carrie doesn’t—Carrie’s theft statute carries a max sentence of one year.
Judges will also weigh positive factors, such as:
Unlike physical presence, the 10-year good moral character clock continues until your final hearing.
Even dismissed or old convictions may count. You should:
|
Requirement |
Key Rule |
| Continuous Physical Presence | 10+ years before NTA service |
| Good Moral Character (GMC) | For 10 years prior to final decision |
| No Disqualifying Criminal Convictions | Under INA §§ 212(a)(2), 237(a)(2), 237(a)(3) |
| Hardship to Qualifying Relative | Must be “exceptional and extremely unusual” |
|
Action |
Bars GMC? |
Bars Cancellation? |
| Drug trafficking | Yes | No (if not convicted) |
| CIMT conviction | Yes | Yes |
| Prostitution conviction | Yes | Yes |
| Habitual drunkard | Yes | No |
Tip: Judges may deny cancellation based on discretion, even if no crime bars apply.
The stop-time rule determines when the clock stops on your 7-year continuous residence requirement. A notice to appear (NTA) or certain criminal offenses can cut off your ability to meet this time requirement.
In Barton v. Barr, the Supreme Court held that committing certain criminal offenses—even if they don’t make you removable—can trigger the stop-time rule. That means your 7-year clock can stop running before you’ve reached the required period of residence, making you ineligible.
Read the case: Barton v. Barr, 140 S.Ct. 1442 (2020)
Criminal convictions, especially aggravated felonies, can bar eligibility. However:
Not all deportable offenses bar cancellation. Key is whether they also make you inadmissible under § 212(a)(2). More on this in Section 5.
These don’t need to make you removable to trigger the stop-time rule—they just need to be offenses that would have made you inadmissible under INA § 212.
The “stop-time” rule ends your 7-year residency clock in two situations:
In Barton v. Barr (2020), the Supreme Court ruled:
For more, see: Practice Advisory on Barton v. Barr
If your conviction is blocking relief:
Explore: Post-Conviction Options for Immigrants (ILRC Guide)
Even if you meet all criteria, a judge can still deny relief. They consider:
Tip: Submitting letters of support, therapy records, and proof of rehabilitation can help your case.
Yes, in some cases:
They cannot be combined with each other or with LPR cancellation. Learn more: ILRC Guide to INA § 212(h)
Despite the harshness of the Barton decision, there are still strategies that may help:
1. Challenge Whether the Offense Stops Time
2. Push Back on the NTA
Resource: Practice Advisory – Avoiding the Stop-Time Rule after Barton v. Barr (ILRC)
|
Step |
Question |
| 1 | Are you in removal proceedings as an LPR? |
| 2 | Have you been an LPR for at least 5 years? |
| 3 | Have you continuously resided in the U.S. for at least 7 years after lawful admission? |
| 4 | Did any criminal offense or NTA stop your time before 7 years were reached? |
| 5 | Have you avoided conviction of an aggravated felony? |
| 6 | Do you have strong discretionary factors (rehabilitation, family, etc.)? |
Even if you’re eligible, the judge can still deny your request. They will consider:
VAWA (Violence Against Women Act) Cancellation of Removal is a form of relief available to non-citizens in the United States who have been subjected to battery or extreme cruelty by a U.S. citizen or lawful permanent resident (LPR) spouse or parent. This relief allows eligible individuals to apply for cancellation of removal and adjust their status to that of a lawful permanent resident.
To qualify for VAWA Cancellation of Removal, an applicant must meet the following requirements:
Important Considerations:
VAWA Cancellation of Removal provides a pathway for certain non-citizens who have been victims of abuse to seek relief from deportation and obtain lawful permanent residency. Meeting the eligibility criteria and effectively presenting the case requires careful preparation and, ideally, the assistance of knowledgeable legal counsel.
After filing your Form EOIR-42B and paying the fee, you may apply for a work permit (EAD). It’s usually valid for one year and can be renewed while waiting for your final hearing or decision.
For non-detained individuals:
If detained:
Public charge grounds typically do not bar cancellation of removal.
Even if you’ve used public benefits like Medicaid or SNAP, this usually won’t affect your cancellation application.
Learn more:
Public Charge Rule FAQs – USCIS
There is no form to apply for cancellation of removal unless you are already in immigration court. Beware of notarios or unlicensed consultants who claim otherwise.
Some scams involve filing fake asylum claims to trigger court proceedings—this can backfire and ruin your chances for cancellation.
If you aren’t currently in court, you can still prepare:
If cancellation of removal isn’t available, there may still be hope.
Main Types of Relief From Removal
If you fear persecution in your home country, you can apply for asylum as a defense to deportation.
You must show:
Asylum can lead to a green card and work authorization.
You also may be eligible for Withholding of Removal: If you fear persecution based on race, religion, nationality, political opinion, or membership in a social group. There is not 1 year filing deadline
Convention Against Torture (CAT): If you fear torture in your home country.
Adjustment of status allows you to apply for a green card from within the U.S. even during removal proceedings.
Eligibility
Special exceptions exist for applicants with family petitions filed before April 30, 2001, under 245(i).
Check your visa category and availability
Voluntary Departure allows you to leave the U.S. on your own before being forcibly deported.
Benefits
Drawbacks
If you lose your case, you have the right to appeal to the BIA within 30 days.
Appeals can result in:
How to Appeal – EOIR BIA Guide
These motions allow you to challenge a removal order after the fact.
A stay of removal temporarily pauses deportation while an appeal or motion is pending.
|
Relief Type |
Stops Deportation? |
Leads to Green Card? |
Requires Family in U.S.? |
| Voluntary Departure | Temporarily | No | No |
| Cancellation (LPR) | Yes | Keeps green card | Helpful, but not required |
| Cancellation (Non-LPR) | Yes | Yes | Yes (must prove hardship) |
| Adjustment of Status | Yes | Yes | Yes (family/employer petition) |
| Asylum | Yes | Yes | Not required |
| Appeal / Motion | Pauses process | Possibly | Not required |
| Stay of Removal | Pauses process | No | Not required |
Cancellation of removal cases are complex, with high stakes and strict legal standards. A skilled immigration attorney can help you:
Find legal help:
|
Type |
Years of Presence |
Hardship Standard |
Qualifying Relatives |
| Green Card Holder | 5 (LPR), 7 (residence) | Not required | None |
| Non-LPR (Undocumented) | 10 | Exceptional & Extremely Unusual Hardship | Spouse, parent, or child (USC/LPR) |
| VAWA (Abuse Victims) | 3 | Extreme Hardship | Self or child |
Winning a cancellation of removal case requires clear, detailed documentation. You’ll need to prove every element of your eligibility. Here’s what helps:
This is the hardest part. You must show that hardship to your qualifying relative is far beyond normal family separation. Judges look for things like:
Some crimes automatically disqualify applicants, including:
For non-permanent residents, USCIS only grants 4,000 cancellation of removal approvals per year. Once the cap is reached, even eligible applicants may have to wait.
See Data:
Source: TRAC Immigration Data Tools
If the immigration judge approves your cancellation of removal application:
If Denied:
Need legal help with your appeal?
Find an Accredited Immigration Lawyer
If ICE knocks at your door or detains you:
Attorneys and DOJ-accredited reps should:
If delays threaten your client’s eligibility, EOIR may consider motions to expedite final approval to avoid disqualifying due to a child aging out.
Case reference: Matter of Isidro, 25 I&N Dec. 829 (BIA 2012)
General Questions About Cancellation of Removal
What is cancellation of removal?
Cancellation of removal is a discretionary form of immigration relief that allows certain noncitizens in removal (deportation) proceedings to remain in the U.S. legally. If granted, it either preserves or grants lawful permanent resident (green card) status.
Who decides whether my cancellation of removal application is approved?
An immigration judge in immigration court decides whether to grant cancellation of removal after reviewing evidence and hearing testimony.
Do I have to be in removal proceedings to apply for cancellation of removal?
Yes. You can only request cancellation of removal as a defense during immigration court proceedings.
Is there a filing fee for cancellation of removal?
Yes. As of 2025, the filing fee for non-LPR cancellation of removal is $100, plus an $85 biometrics fee. There is no fee for LPR cancellation of removal.
Can I apply for cancellation of removal more than once?
Generally, you can only receive cancellation of removal once in your lifetime. There are limited exceptions in rare cases.
FAQs for Lawful Permanent Residents (LPRs)
Who qualifies for cancellation of removal as a lawful permanent resident?
You may qualify if you:
Does time spent in the U.S. before getting my green card count toward the 7-year requirement?
No. The 7 years of continuous residence must begin after a lawful admission to the U.S., such as after receiving a visa or green card.
What is an “aggravated felony”?
This is a category of serious crimes under immigration law that includes offenses like drug trafficking, theft or violent crimes with a sentence of one year or more, and some fraud offenses. Even misdemeanors under state law may count as aggravated felonies for immigration purposes.
If I have a criminal conviction, can I still apply?
It depends on the conviction. Aggravated felonies disqualify you. Other convictions may be considered negatively but not necessarily disqualifying. Legal counsel is crucial in such cases.
Does a grant of cancellation of removal erase my criminal record?
No. The grant allows you to stay in the U.S. as an LPR, but it does not expunge or eliminate your criminal convictions.
What happens to my green card if cancellation of removal is granted?
If you’re an LPR and your application is approved, you retain your green card and lawful permanent resident status.
FAQs for Non-Lawful Permanent Residents (Non-LPRs)
Who qualifies for cancellation of removal as a non-permanent resident?
You may qualify if you:
How is “continuous physical presence” calculated?
You must have lived in the U.S. for at least 10 years without a break of 90 days or more or multiple absences totaling more than 180 days. Receipt of a Notice to Appear (NTA) stops the clock.
Can I count time in the U.S. after receiving a Notice to Appear (NTA)?
No. The issuance of the NTA cuts off your ability to accrue time toward the 10-year physical presence requirement.
What qualifies as “good moral character”?
You must not have committed certain crimes or immigration violations, and you must generally demonstrate honesty, reliability, and community responsibility. Evidence may include character references, employment history, and lack of criminal record.
What kind of hardship qualifies as “exceptional and extremely unusual”?
The hardship must be significantly more severe than what most families would face in a deportation scenario. Examples include:
Can hardship to the applicant be considered?
No. Only hardship to a qualifying relative (U.S. citizen or LPR spouse, child, or parent) can be considered.
Can DACA recipients apply for non-LPR cancellation of removal?
DACA recipients can apply if they meet all other eligibility criteria and are in removal proceedings. However, DACA time may not count toward physical presence if it was granted after a prior removal or illegal reentry.
If my child is a U.S. citizen, do I automatically qualify for cancellation of removal?
No. While having a U.S. citizen child is necessary to meet the hardship requirement, you still must prove the hardship is “exceptional and extremely unusual” and meet all other requirements.
Evidentiary and Procedural Issues
What types of evidence should I include with my application?
Can I get a work permit while my cancellation of removal case is pending?
If you apply for cancellation of removal and your proceedings are ongoing, you may be eligible for work authorization. You must request it formally and meet eligibility conditions.
How long does it take for the court to decide a cancellation of removal case?
It varies widely depending on court backlogs. Some cases take several months to years before a final decision is reached.
Can I appeal if the immigration judge denies my cancellation of removal application?
Yes. You can appeal to the Board of Immigration Appeals (BIA) within 30 days of the decision.
Can new evidence be introduced on appeal?
No. The BIA reviews the record created in immigration court. You cannot add new evidence unless you file a motion to reopen.
Can I file a motion to reopen my cancellation of removal case if it’s denied?
Yes, but you must generally do so within 90 days of the final order. The motion must be based on new, previously unavailable evidence.
What happens if the annual cap for non-LPR cancellation cases has already been reached?
Only 4,000 non-LPR cancellations may be granted per year. If you’re otherwise eligible but the cap is reached, the judge may “preterm” your case and schedule you for the next fiscal year’s allocation.
Other Less Common Questions
Can I apply for cancellation of removal if I have a final order of removal?
No. You must be currently in removal proceedings. However, if circumstances have changed, you may be able to file a motion to reopen proceedings and then request cancellation.
Is cancellation of removal available to TPS holders or those with temporary visas?
Yes, but only if they are in removal proceedings and meet the physical presence and hardship requirements. Simply having TPS or a visa does not make you ineligible.
Can someone with a reinstated removal order apply for cancellation?
Generally, no. Reinstated removal orders make you ineligible for most forms of relief, including cancellation.
Is there any relief available for individuals with prior immigration fraud or misrepresentation?
Possibly. However, misrepresentation may affect your ability to show good moral character or admissibility. You may need a waiver in conjunction with other relief.
Does receiving public benefits affect my cancellation of removal case?
It may be considered as part of your overall record but is not disqualifying in itself. Judges may assess it in the context of your ties to the U.S. and ability to support yourself.
Can my U.S. citizen spouse or child file for me instead of applying for cancellation of removal?
Not in court. Family petitions can support other types of relief (like adjustment of status), but cancellation is a defense you must pursue yourself while in proceedings.
|
Stat |
Details |
| 11.3 million | Undocumented immigrants in the U.S. |
| 7 million | Have lived in the U.S. for 10+ years |
| 3.5 million | Have U.S. citizen children |
| 4 million+ | Immigration court backlog |
| 4,000/year | Legal cap on cancellation of removal approvals |
As Trump’s enforcement efforts increase deportation actions exponentially, cancellation of removal will become a primary legal shield for millions of long-time residents with deep U.S. family ties.
Act early. Prepare thoroughly. Advocate strategically.
Deportation proceedings can be life-altering, but legal options exist. Cancellation of removal may be the lifeline you or a loved one needs.
Always consult with an immigration attorney to explore the best path forward. Timing, documentation, and legal strategy can make all the difference.
Find legal help:
When everything is on the line, experience and dedication matter. Here’s what sets us apart:
Let Herman Legal Group fight for you, protect your rights, and help you stay in the U.S. with your family and your future intact.
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More Resources
Practice Advisory (ILRC, IDP, NIPNLG): Avoiding the Stop-Time Rule
Supreme Court Decision: Barton v. Barr, 140 S. Ct. 1442 (2020)
For many international students in the U.S. on an F-1 visa, maintaining their nonimmigrant status while pursuing their career goals is crucial. They want to build a career in the U.S., work in their field, and maybe even pursue a green card in the long term. One common route is changing status from an F-1 student visa to an H-1B work visa—a work visa for professionals in specialty occupations.
While the process can be complex, with planning, the right employer, and attention to deadlines, it’s absolutely achievable.
This detailed guide will walk you through:
What the F-1 and H-1B visas are
How Optional Practical Training (OPT) fits in
The full change of status process
Requirements, documents, fees, and strategies
What to do if your H-1B is denied
How an immigration lawyer can help
Secure a Job Offer: From a U.S. employer in a “specialty occupation.”
H-1B Lottery Registration: Typically held each March. Employers register candidates online.
File Labor Condition Application (LCA): Employer files LCA with the U.S. Department of Labor.
Submit H-1B Petition (Form I-129): Includes request to change status from F-1 to H-1B, also known as a status petition.
Cap Gap Extension (if needed): Automatically extends F-1 status and OPT in some cases.
Status Change on October 1: H-1B status starts at the beginning of the fiscal year.
For HR Managers: Keep open communication with your F-1 hires and monitor petition filing timelines.
For Students: Stay organized with documents, deadlines, and communications from your employer and DSO.
The H-1B visa is a nonimmigrant work visa for individuals in specialty occupations. It allows U.S. employers to hire skilled foreign professionals.
You must have a bachelor’s degree or higher (or equivalent work experience).
The job must be in a specialty occupation (e.g., engineering, IT, medicine, finance, etc.), which requires a bachelor’s degree as a minimum entry requirement into the profession. The H-1B is a specific visa category designed for professionals in specialty occupations.
You need a U.S. employer willing to sponsor your H-1B petition.
Department of Defense (DoD) Cooperative Research Workers
Fashion Models: With distinguished merit and ability.
Annual cap: 65,000 regular H-1Bs + 20,000 for advanced degree holders.
Petitions open annually around March, with a LOTTERY. The employer can enter your name into the lottery, and if you win, the employer can file the H1B petition with USCIS. If USCIS grants the H1B petition, H1B status begins on October 1st.
Employers must pay at least the prevailing wage for your job and location.
Work legally in the U.S. for up to 6 years (initial 3 years + 3-year extension)
Gain practical and professional experience
Engage in roles that require both theoretical and practical application of specialized knowledge
Bring dependents (spouse and children) on H-4 visas
Travel in and out of the U.S. while maintaining status
Apply for a green card through employment-based sponsorship
Learn more from the USCIS H-1B Visa Overview
The F-1 visa is a nonimmigrant student visa for international students enrolled full-time in U.S. academic institutions.
You must be admitted to a SEVP-approved school, which will issue Form I-20.
You then apply for the F-1 visa either through consular processing abroad or through change of status within the U.S.
Remain enrolled full-time
Do not work off-campus without authorization
Follow all visa regulations (address updates, travel endorsements, etc.)
For details, visit the Study in the States F-1 Guide
There are two main ways to transition from F-1 to H-1B:
Use Optional Practical Training (OPT) after graduation to work temporarily.
Find an H-1B sponsoring employer during your OPT period.
If you already have a job offer, you may skip OPT and go straight to H-1B.
Can I Skip OPT and Go Directly to H-1B?
Yes, but:
You must have graduated and found an H-1B employer before your F-1 status or grace period ends.
You must not work unless authorized under OPT or H-1B.
OPT is a temporary work authorization that allows F-1 students to gain practical experience in their field of study.
Pre-Completion OPT: Part-time during school
Post-Completion OPT: Full-time after graduation
Request OPT authorization from your Designated School Official (DSO)
Receive OPT recommendation in your SEVIS record
File Form I-765 to get your Employment Authorization Document (EAD)
File Form I-765 Online
If your degree is in a STEM field, you may be eligible for a 24-month OPT extension
More on STEM OPT
To make the transition, you must meet both educational and legal criteria.
A U.S. degree or a foreign equivalent in a relevant field
A job offer from a U.S. employer in a specialty occupation
Licenses or certifications if required for your field (e.g., teaching, law, medicine)
Optionally, relevant work experience may substitute for part of your degree
You can apply if you:
Were lawfully admitted to the U.S. on a valid nonimmigrant visa.
Are still within your period of authorized stay (check your I-94 Arrival/Departure Record).
Have not violated the terms of your visa.
Have not committed any crimes that would disqualify you.
Tip: Apply as early as possible — don’t wait until the last minute!
The employer must be willing to sponsor you, enter the lottery (if a cap-subject employer), and file the H-1B petition on your behalf.
Before filing the H-1B petition, your employer must file an LCA (Form ETA 9035) with the U.S. Department of Labor.
Details in the DOL H-1B Labor Condition Application Guide
This form requests a change of status and must include:
Approved LCA
Job offer and description
Evidence of your qualifications
You cannot file this yourself. Only the employer can.
Each fiscal year in March, USCIS holds a randomized lottery due to high demand.
Regular Cap: 65,000 visas
Master’s Cap: 20,000 for U.S. master’s/PhD holders
H-1B Lottery Registration Fee: $215 per registration
If selected, your change of status can begin on October 1st.
|
Date/Event |
Activity |
|
March 2025 |
H-1B lottery registration period |
|
Late March/Early April |
Lottery results announced |
|
April to June 2025 |
Employers file petitions (Form I-129) |
|
April to Sept 2025 |
USCIS processing period |
|
October 1, 2025 |
Start of H-1B status |
|
April 1, 2026 |
End of extended cap gap status (new rule) |
The cap gap period allows F-1 students with pending H-1B petitions to stay and work in the U.S. after OPT expires and before H-1B begins.
If your OPT ends before October 1 and your H-1B is selected, the Cap-Gap extension lets you remain in the U.S. legally until H-1B status begins.
You must file for the Cap-Gap through your school’s DSO.
This only applies if your H-1B petition was filed before your OPT expired.
Learn about the Cap-Gap Extension
Cap gap extensions now last until April 1 of the following year, a major expansion from the previous October 1 limit.
Petition must request Change of Status, not consular processing
Petition must be filed before OPT expiration
Petition must be for the same fiscal year as your H-1B selection
|
Petition Filed While… |
Can You Work? |
|
On active OPT or STEM OPT |
Yes |
|
During 60-day grace period |
No |
Updated I-20 issued by DSO showing cap gap extension
No new EAD is issued
Ask your employer for proof of filing (receipt notice or courier confirmation)
Give proof to your DSO to issue updated I-20
When the receipt notice (Form I-797C) arrives, bring it to the DSO for a final update
Keep both digital and physical copies of the updated I-20 for:
Driver’s license renewal
Employment verification
Travel records
|
Event |
Result |
Action Needed |
|
Denial, revocation, or withdrawal |
Cap gap ends immediately |
60-day grace period begins |
|
Denial due to violation/fraud |
No grace period allowed |
Depart U.S. immediately |
Provide DSO with withdrawal confirmation
DSO can request a SEVIS data fix
You may continue on unexpired OPT if eligible
Your employer will submit a full application packet that may include:
Your updated resume
Diploma and transcripts
Copies of all I-20s
Employment Authorization Document (EAD) if on OPT
I-94 Arrival/Departure Record
Copies of passport and visa
Signed job offer letter
Proof of prevailing wage compliance
The H-4 visa is a dependent visa for the immediate family members (spouse and unmarried children under 21) of H-1B visa holders. If you are eligible for H-4 status, you can obtain it either through a change of status while inside the United States or via consular processing from abroad.
If you are already in the U.S. on a different nonimmigrant visa (such as F-1 or B-2), you may apply for a change of status to H-4 without leaving the country. To do so:
File Form I-539 with U.S. Citizenship and Immigration Services (USCIS)
Submit documentation, including:
Copy of the H-1B holder’s approval notice (Form I-797)
Your passport, I-94, and proof of relationship (e.g., marriage or birth certificate)
A letter of explanation and financial support evidence
You must remain in valid status while the application is pending. If approved, your status will change to H-4 without the need to leave the U.S.
If you are outside the U.S. or prefer to apply from abroad, you will go through consular processing:
Complete the DS-160 form online
Pay the visa fee and schedule a visa interview at a U.S. consulate
Attend the interview with:
Passport
DS-160 confirmation
H-1B holder’s approval documents
Proof of relationship
Once approved, your H-4 visa will be stamped in your passport
You may then enter the U.S. in H-4 status.
Learn more: USCIS I-539 Info | H-4 Visa Info
H-4 holders may also be eligible for work authorization under certain conditions.
If approved while you’re still in the U.S., your status automatically changes on October 1.
If denied or filed after your F-1 grace period, you may need to leave and re-enter on an H-1B visa (via consular processing).
Denials can happen due to:
Incomplete documentation
Job not qualifying as a specialty occupation
Degree not matching job requirements
Ineligibility employer
Insufficient documentation
Timing issues
Appeal or refile (with help from a lawyer)
Apply for another visa type
Leave the U.S. and reapply from abroad
Tip: Always consult a qualified immigration attorney to avoid preventable errors.
If you’re outside the U.S. or unable to stay through cap-gap:
Wait for H-1B approval from USCIS.
Apply for a visa at a U.S. consulate.
Attend your visa interview.
Receive an H-1B visa stamp and re-enter the U.S.
This is often referred to as H-1B stamping.
DS-160 Application for a Nonimmigrant Visa
|
Fee Type |
Amount |
|
|
|
|
Base Filing Fee |
$460 ($780 if more than 25 employees) |
|
ACWIA Training Fee |
$750 ($1,500 if more than 25 employees) |
|
Fraud Prevention Fee |
$500 |
|
Asylum Fund Fee |
$300 ($600 if more than 25 employees) |
|
Optional Premium Processing |
$2,805 (USCIS expedites within 15 days vs. 4.5 to 10 months for conventional processing)(can be paid by employee) |
For up to date info on filing fees, see USCIS website.
Check USCIS Premium Processing Info
Note: These fees, exception for premium processing, must be paid by the employer and cannot be passed to the employee.
Employee-Paid Fees (If Applicable)
MRV (Visa Stamping) Fee: $205, paid to the U.S. Department of State
Dependent H-4 Visas: Each dependent pays $205 MRV fee
Dependent H-4 I-539 change of status; $470 by mail; $420 online
Start looking for a job and employer sponsorship as early as your final academic year. If you wait until after OPT ends, you may miss your window.
|
Document |
Description |
|
Form I-129 |
Main petition form (filed by your employer) |
|
Copy of F-1 Visa |
From your passport |
|
I-20 Forms |
Especially the most recent |
|
I-94 Record |
|
|
EAD Card (if on OPT) |
Employment Authorization Document |
|
Job Offer Letter |
With salary, duties, and job title |
|
LCA Certification |
Labor certification from the DOL |
|
Proof of Graduation |
Degree and transcript |
|
Company Proof |
Website, tax returns, incorporation certificate |
While Petition Is Pending:
Do not travel internationally. Your change of status will be deemed abandoned.
After Approval, Before Oct. 1:
You may re-enter in F-1 status with:
Valid F-1 visa
Current I-20
H-1B approval notice
Proof of intent to resume student status
After Oct. 1 (H-1B Active):
Re-entry requires:
H-1B visa stamp
Passport valid for at least 6 months
Original H-1B approval (Form I-797)
Employment verification letter
Keep SEVIS record active
Report address changes within 10 days
Stay within OPT unemployment limits:
Regular OPT: Max 90 days
STEM OPT: Additional 60 days (Total: 150 days)
Employer must withdraw H-1B
Cap gap ends immediately
You enter a 60-day grace period (unless disqualified by status violation)
Automatic Status Change:
Status shifts from F-1 to H-1B on October 1
New I-9 form must be completed using Form I-797A and attached I-94
SSN & Documentation:
If you already have an SSN, no need to apply again
If you don’t, wait 10 days after H-1B starts, then apply
Update:
Driver’s license
Health insurance
Employer HR systems
Banking info
Begin registration planning in January
Employees’ OPT and cap gap timelines
Consider premium processing when deadlines are tight
Maintain active status
Confirm petition details with your employer
Speak with your DSO regularly
The F-1 to H-1B transition is full of strict deadlines, nuanced eligibility rules, and high stakes.
An experienced immigration attorney can help you:
Assess eligibility and timing
Prepare evidence and filings
Maximize your chance of approval
Respond to denials or RFEs (Requests for Evidence)
An experienced immigration attorney can help you:
Avoid delays or rejections
Understand Cap-Gap and STEM OPT nuances
Build a long-term strategy for a green card
What is an H-1B visa, and how is it different from an F-1 visa?
An F-1 visa is for full-time academic students, while an H-1B is a nonimmigrant work visa for foreign nationals employed in specialty occupations requiring at least a bachelor’s degree or equivalent.
Can I change status from F-1 to H-1B without leaving the U.S.?
Yes. If your H-1B petition is filed as a “Change of Status” and approved, your status automatically changes to H-1B on October 1 without leaving the U.S.
Do I need to be in OPT or STEM OPT to apply for H-1B?
Not necessarily, but most F-1 students apply for H-1B while on OPT or STEM OPT, allowing them to work while waiting for their H-1B status to begin.
What is the H-1B cap, and how does it affect F-1 students?
The regular H-1B cap is 65,000, with an additional 20,000 reserved for U.S. master’s degree holders. If you apply under the cap, your petition must be selected in the annual H-1B lottery, usually held in March.
What is cap-gap extension, and how does it help F-1 students?
Cap-gap allows students whose OPT/STEM OPT expires between April 1 and September 30 to extend their F-1 status and work authorization until their H-1B begins on October 1, if their H-1B petition is filed on time and selected.
What documents are needed to change from F-1 to H-1B?
The employer submits:
Form I-129
Labor Condition Application (LCA)
Job offer letter
Evidence of degree and qualifications
F-1 visa status documents (I-20, EAD card, I-94)
Passport copy
If applicable, OPT/STEM OPT documents
Can I file my own H-1B petition as an F-1 student?
No. H-1B petitions must be filed by a U.S. employer on your behalf. Self-sponsorship is not permitted under H-1B rules.
Can I switch employers while waiting for my H-1B to begin?
You can change employers while on OPT/STEM OPT. However, once your H-1B is filed for a specific employer, switching before October 1 can disrupt the cap-gap and change of status process. After October 1, you may change H-1B employers through a transfer.
What happens if my H-1B is not selected in the lottery?
You can remain in the U.S. on valid OPT/STEM OPT (if eligible) or consider alternatives such as:
STEM OPT extension
Cap-exempt H-1B employment
Other visa categories (e.g., O-1, L-1, or enrollment in another academic program)
Do I need to maintain my F-1 status after my H-1B is approved?
If your change of status is approved and you remain in the U.S., you must maintain your F-1 status until the H-1B becomes effective (October 1). This includes meeting all OPT/STEM OPT reporting and employment requirements.
Can I travel internationally after my H-1B is approved but before October 1?
It is generally risky to travel outside the U.S. after your H-1B is approved with change of status and before October 1. Exiting the U.S. may cancel the change of status request. You would then need to obtain an H-1B visa abroad and re-enter the U.S. in H-1B status after October 1.
If I leave the U.S. during cap-gap, can I re-enter?
No. Cap-gap is only valid while you remain in the U.S. If you leave, you cannot re-enter on F-1. You must apply for an H-1B visa and re-enter on or after the H-1B start date.
What is the difference between H-1B change of status and consular processing?
Change of status allows you to transition directly from F-1 to H-1B inside the U.S. without leaving. Consular processing requires you to get an H-1B visa at a U.S. consulate abroad and re-enter the U.S. to activate H-1B status.
Do I have to stop working if my OPT expires and my H-1B is pending?
If you are eligible for cap-gap and your H-1B petition was timely filed, you can continue working until September 30, even if your OPT expires.
What if my H-1B petition is denied?
If your change of status is denied, your cap-gap work authorization ends immediately. You must stop working and may have a 60-day grace period to remain in the U.S. or depart, depending on the denial reason and remaining status.
Can I pursue part-time studies or a second degree while on H-1B?
Yes, you can study while in H-1B status, but your primary purpose must be employment. You cannot be a full-time student or change status back to F-1 without applying separately.
Can I stay in the U.S. between F-1 and H-1B if my OPT ends early?
If you don’t qualify for cap-gap and your OPT ends before October 1, you may not be able to remain in the U.S. unless you change to another valid status or leave and return later on an H-1B visa.
Is there a grace period after my OPT expires if I don’t get H-1B?
Yes. You typically have a 60-day grace period after your OPT or STEM OPT ends to leave the U.S., change status, or transfer to another academic program, assuming you maintained status throughout.
Can a nonprofit or university sponsor me for a cap-exempt H-1B?
Yes. Certain nonprofit research organizations, universities, and government research institutions are exempt from the H-1B cap and can file at any time of year.
How does the STEM OPT extension impact my H-1B timeline?
STEM OPT provides an additional 24 months of work authorization beyond the initial 12-month OPT. This increases your chances of being selected in the H-1B lottery over multiple years and extends your cap-gap eligibility.
Can I volunteer while waiting for my H-1B to begin?
You can only work if authorized. Volunteering in a position that normally pays wages could be seen as unauthorized employment. Always consult with your DSO or an immigration attorney.
Can my spouse work if I change from F-1 to H-1B?
Your spouse can change from F-2 to H-4 status. H-4 visa holders are not automatically allowed to work, but may apply for work authorization if you have an approved I-140 or are in certain stages of the green card process.
Can I apply for a green card while on H-1B?
Yes. Unlike F-1, the H-1B allows “dual intent,” meaning you can apply for permanent residency (a green card) without violating your visa status.
What happens if I lose my job while on H-1B after transitioning from F-1?
You have a 60-day grace period to find a new H-1B employer (who must file a transfer petition), change to another status, or depart the U.S.
Can I work for multiple employers under H-1B after changing from F-1?
Yes, but each employer must file a concurrent H-1B petition, even if you are already in H-1B status.
Does CPT affect my H-1B eligibility?
Excessive CPT use or CPT at multiple levels can raise red flags with USCIS. If you used CPT without maintaining proper student status, your H-1B change of status could be denied.
How many times can I apply for the H-1B lottery while on F-1 status?
As long as you maintain valid F-1 status (including OPT or STEM OPT), you can apply for the H-1B lottery each year. Many students apply multiple times.
Should I use consular processing instead of change of status?
You might consider consular processing if:
You plan to travel before October 1
Your F-1 status has already ended
You want to delay H-1B activation
However, this means you must leave the U.S. and get an H-1B visa stamp abroad.
Over 25 years of immigration law experience across all employment-based and student-related visa categories.
Extensive experience helping F-1 students transition to H-1B through OPT, STEM OPT, and cap-gap planning.
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Led by Attorney Richard Herman, a nationally known immigration lawyer featured by CNN, NPR, Forbes, and The New York Times.
Recognized for innovative immigration solutions for both individuals and employers.
Invited speaker at universities and business conferences on F-1, OPT, STEM, and H-1B transitions.
Strategic advice on H-1B timing, cap-gap eligibility, and avoiding gaps in status.
Expertise in navigating travel risks, consular processing, and complex case scenarios.
Careful review of CPT/OPT history to avoid RFEs or denials.
Advises corporate HR departments, universities, and research institutions on filing cap-subject and cap-exempt H-1Bs.
Ensures full compliance with LCA requirements, wage-level analysis, and position qualifications.
Offers step-by-step guidance to make the process smooth for both the student and employer.
Assistance with:
H-1B petitions (Form I-129)
Change of status strategy
Consular processing alternatives
Cap-exempt H-1B filings
STEM OPT extensions and related filings
Ongoing legal support for portability, H-1B transfers, and future green card planning.
Consultations available via Zoom, WhatsApp, Skype, FaceTime, or in-person.
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Book your consultation with Attorney Richard Herman today:
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Helpful Resources
When applying for an I-601 or I-601A waiver of inadmissibility, applicants must demonstrate that their U.S. citizen or lawful permanent resident (LPR) relative would suffer “extreme hardship.” U.S. Citizenship and Immigration Services (USCIS) is responsible for assessing waiver applications and determining eligibility based on extreme hardship criteria.
Proving “extreme hardship” to a qualifying relative is often the most challenging — and important — part of your I-601 or I-601A waiver application. This includes considering the qualifying relative’s hardships, such as the psychological and emotional impacts of military separation and the potential dangers faced by those previously granted specific protective statuses like asylum or refugee status.
But what does “extreme hardship” that really mean? And how can you strengthen your application? You are spending a lot of time and money on this — you want to get it right.
This guide breaks it all down with updated insight, real-life examples, a checklist approach, and clickable resources to help you build the strongest case possible.
Before you can understand extreme hardship, it’s crucial to know what is a waiver of inadmissibility, and what are the I-601 and I-601A?
Certain individuals who are otherwise inadmissible to the U.S. (because of unlawful presence, fraud, past crimes, or other issues) can still apply for legal status if they can show that a qualifying U.S. relative would suffer extreme hardship without them.
You don’t have to prove that you personally will suffer. The focus must be on how your U.S. relative—such as US citizen or permanent resident spouse or parent—would suffer if you are denied entry or legal status.
I-601 Waiver: Used by individuals outside the U.S. or applying for visas at consulates who are deemed “inadmissible.”
Both waivers require demonstrating extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative if you’re denied reentry or required to remain outside the U.S. This includes considering family dynamics and caregiving responsibilities, even if the children or caregivers are not lawful permanent residents, to maintain family unity and address caregiving burdens.
Learn more directly from USCIS:
· I-601 Waiver Overview (USCIS)
· I-601A Provisional Waiver Guide (USCIS)
Here are three of the most common waiver types where this standard applies:
|
Waiver Type |
Legal Basis |
Reason for Inadmissibility |
Who Can Be the Qualifying Relative? |
| I-601
& I-601A Waiver |
INA § 212(a)(9)(B)(v) | Unlawful presence (3/10-year bars) | U.S. citizen or LPR spouse or parent |
| I-601 Waiver | INA § 212(i) | Fraud or misrepresentation | U.S. citizen or LPR spouse or parent |
| I-601 Waiver | INA § 212(h)(1)(B) | Certain criminal conduct | U.S. citizen or LPR spouse, parent, or child |
Note: For criminal waivers, a U.S. citizen or LPR child can also be a qualifying relative.
If you’ve spent time in the United States without legal immigration status, you may be subject to what’s called the unlawful presence bar. This is a penalty under U.S. immigration law that makes it difficult—or impossible—for certain people to return legally to the United States after leaving, even if they’re otherwise eligible for a green card or visa.
The unlawful presence bar is triggered when you:
That means if you leave the country—often as part of the process of applying for a green card through a U.S. consulate—you’ll be barred from returning for 3 or 10 years unless you qualify for a waiver.
You need a waiver to avoid or “forgive” the 3-year or 10-year bar that would otherwise stop you from reentering the U.S. legally. Without this waiver, your green card application could be denied, and you may be forced to stay outside the U.S. for several years—separated from your spouse, children, or other family.
If you’re currently in the U.S. and plan to leave for a green card interview at a U.S. consulate, you may be eligible to file Form I-601A: Provisional Unlawful Presence Waiver before you depart.
This process:
Learn more: Form I-601A – USCIS
If you’ve already left the U.S. or must apply for a green card from abroad, and are subject to the 3– or 10-year bar, you’ll need to file Form I-601: Waiver of Grounds of Inadmissibility.
This form:
Learn more: Form I-601 – USCIS
Filing too early may delay the consular process unnecessarily. Filing too late—especially after already leaving the U.S.—may increase the risk of separation if the waiver is denied or delayed.
An experienced immigration attorney can help:
Under U.S. immigration law, “extreme hardship” goes beyond the typical emotional or financial consequences of family separation or relocation. It requires showing that the hardship your qualifying relative would face is greater than what is normally expected when a loved one is denied admission to the U.S.
The emotional and psychological impact, such as anxiety, depression, and severe stress, can significantly strengthen a waiver application.
Not all hardship qualifies as “extreme.” The law requires that:
According to case law such as Matter of Cervantes-Gonzalez, extreme hardship depends on:
· Matter of Hwang, 10 I&N Dec. 448 (BIA 1964)
· Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999)
· Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996)
· Matter of Kao, 23 I&N Dec. 45 (BIA 2001)
The following are generally not enough on their own:
However, if these common factors are combined and magnified—due to medical conditions, caregiver burdens, or country-specific dangers—they may reach the threshold of extreme hardship.
For I-601 and I-601A waiver, only the following individuals may be considered “qualifying relatives”:
To qualify for a waiver, you need to show how your qualifying relative would suffer in one or both of these scenarios:
Old Rule: Applicants had to prove extreme hardship in both scenarios:
New Rule (as of Dec. 5, 2016): Applicants now need to prove hardship in only one of these scenarios, as long as they submit a signed, detailed, and credible statement of intent explaining which scenario is likely and why.
The statement must be made under penalty of perjury and should be supported by documentation, such as:
· Employment obligations
· Medical needs
· Educational or caregiving responsibilities
· Country condition reports
USCIS officers assess extreme hardship based on all available facts and evidence. This includes:
No single factor guarantees success. Officers must weigh how all presented circumstances interact. A strong case demonstrates how various hardships overlap and intensify the impact on the qualifying relative.
While certain hardships are typical in immigration cases, they don’t automatically count as “extreme.” Examples of common consequences include:
Extreme hardship arises when these typical problems are paired with other serious or compounding factors that make the overall situation particularly harmful to the qualifying relative’s health, safety, or well-being.
Officers must consider hardship both individually and cumulatively. Factors that might not qualify on their own can, when combined, meet the legal threshold for extreme hardship.
Example:
Individually, each may seem minor. But together, they may rise to extreme hardship when considered holistically.
If your relative stays in the U.S. while you’re removed or denied entry, the following types of hardship may count:
Helpful Resource: Mental Health Impact Reports in Immigration
If your U.S. relative would move abroad to be with you, these hardships could apply:
Check Country Conditions: U.S. State Department Travel Advisories
Below is a breakdown of hardship factors that USCIS may consider. Include as many of these as apply, and support them with evidence.
To strengthen your case, you’ll need to document how your qualifying relative(s) would suffer across multiple areas of life.
Real-world Tip: Use affidavits, psychological evaluations, and family photographs to document emotional hardship.
Pro Tip: Use Bureau of Labor Statistics and World Bank country data to support your economic claims.
USCIS flags the following situations as particularly strong indicators of extreme hardship:
Each of these should be supported with thorough documentation such as:
Example: Sara, an Australian national, overstayed her visa after dropping out of college. She’s married to a U.S. citizen who earns a remote income. Sara may not be able to prove her husband would suffer extreme hardship if she had to return to Australia—he can move with her and still work.
However, her mother (a U.S. citizen) is undergoing chemotherapy and relies on Sara for transportation and emotional care. In this case, Sara’s mother could be the qualifying relative whose hardship supports a waiver request.
Disability and Caregiving A U.S. citizen spouse with a disability depends on the applicant for daily support. Relocation would sever access to healthcare and caregiving, leading to serious emotional and physical harm.
Persecution Risk Due to LGBTQ+ Status An applicant in a same-sex marriage would be forced to return to a country where homosexuality is illegal. The U.S. citizen spouse fears for the applicant’s life and suffers anxiety, depression, and loss of emotional support.
Single Parent Burden If the applicant is deported and the spouse must care for young children alone while maintaining employment, this dual burden may result in economic collapse, emotional trauma, and disrupted child development.
Scenario 1: Common Hardship, Not Enough
Facts: AB is undocumented. His U.S. citizen wife would relocate with him but faces economic hardship and doesn’t speak the language.
Outcome: Denial likely. These are common consequences of relocation.
Scenario 2: Emotional Ties and Child’s Suffering
Added Facts: They now have a 9-year-old U.S. citizen daughter with deep U.S. family ties. The child doesn’t speak the local language abroad.
Outcome: Stronger case. Emotional hardship to the wife increases due to the child’s suffering and separation from extended family.
Scenario 3: Multiple Qualifying Relatives
Facts: AB has both LPR parents and a U.S. citizen spouse who would suffer emotionally from separation.
Outcome: Likely approval. Emotional suffering of multiple qualifying relatives carries greater weight.
Scenario 4: Financial Separation Only
Facts: CD is married to a U.S. citizen with no children. She’s a housecleaner. Husband plans to stay in U.S.
Outcome: Likely denial. Economic loss alone is not “extreme.”
Scenario 5: Education Disruption and Language Barrier
Facts: Taiwanese couple with 5 U.S. citizen children. Children speak only English and would struggle in public Chinese-language schools.
Outcome: Approval (based on Matter of Kao). The 15-year-old daughter’s disruption meets the threshold for extreme hardship.
Scenario 6: Economic and Security Risk
Facts: KL would relocate to a dangerous country. Regions of the country are under travel warnings. Unemployment is severe nationwide.
Outcome: Approval likely. Fear of danger and economic hardship that threatens basic needs count as extreme.
A compelling case shows how multiple factors—like caregiving, illness, cultural isolation, and fear of harm—combine to exceed normal hardship.
|
Scenario |
Why It May Qualify |
|||
| Your spouse has a serious health condition and relies on you for physical and emotional support | Separation could cause a decline in their well-being | |||
| Your children do not speak the language of your home country | If your spouse must relocate, this could disrupt education and cause cultural isolation | |||
| You are the family’s sole provider, and your home country has high unemployment or political unrest | This could leave your qualifying relative in poverty or danger | |||
| You care for a U.S. citizen parent who is elderly or ill | Their health and well-being would decline without your care | |||
| Your family belongs to a persecuted minority group in your home country | Relocating could endanger your loved ones | |||
| Ongoing war, violence, or economic collapse in your country | Returning would expose your family to instability | |||
| U.S. citizen wife of applicant would need to relocate to a country with no access to mental health services | Likely qualifies as extreme hardship | |||
| Applicant’s LPR father depends on him for transportation to chemotherapy | Strong argument for hardship due to caregiving | |||
| Applicant’s U.S. citizen child has asthma but is not a qualifying relative | Not enough on its own—but may support hardship to parent | |||
| Relocation would mean loss of job, language difficulties, and isolation for U.S. citizen spouse | When combined, may meet the hardship standard | |||
You can find current U.S. government travel warnings at the U.S. State Department Travel Advisory page.
|
Type of Hardship |
Examples |
| Medical | Cancer, diabetes, disability requiring care |
| Financial | Loss of sole income, unpayable debts, dual roles (breadwinner + caregiver) |
| Educational | Children’s disrupted schooling, language barriers |
| Emotional | PTSD, anxiety, depression worsened by separation |
| Country Conditions | War zones, unsafe travel, persecution, lack of infrastructure |
Children are not always qualifying relatives. But if your qualifying relative (like your spouse) would experience hardship because of the children’s suffering, this can still strengthen your case.
Example:
If your child has autism and requires therapy only available in the U.S., and your U.S. citizen spouse would be forced to quit a job and relocate to a country with no similar services, this can be framed as extreme hardship to the spouse, even though the hardship originates with the child
While children are not qualifying relatives for fraud or unlawful presence waivers, hardship to children may still support a case—if their suffering would cause hardship to a qualifying parent or spouse.
Example:
If a U.S. citizen spouse would suffer psychological and financial distress due to a child’s inability to access special education abroad, this may constitute extreme hardship to the spouse.
If the qualifying relative has died, some applicants may still pursue a waiver:
In these situations, USCIS will presume extreme hardship, allowing the waiver application to proceed.
More info: INA § 204(l) Relief
1. Tell a Personal, Specific Story
Avoid generalizations like “We’ll miss each other.” Instead, provide detailed, emotional, and fact-based narratives that show how your loved one’s life will change for the worse.
2. Use Strong Documentation
Include supporting evidence such as:
3. Highlight the Totality of Circumstances
USCIS evaluates everything together — not just one factor. Focus on how multiple aspects (health, financial, emotional, family, cultural) intersect.
4. Be Honest, Thorough, and Organized
Include:
If you or a loved one is facing inadmissibility to the United States due to unlawful presence, misrepresentation, or certain crimes, you may be eligible for a waiver. These waivers—I-601, I-601A, —require you to prove that your U.S. citizen or lawful permanent resident (LPR) relative would suffer extreme hardship if your application is denied.
One of the most effective tools for demonstrating that hardship is a comprehensive psychological evaluation, which can help turn subjective suffering into objective, documented evidence. Family law proceedings, such as protection orders and child support issues, can significantly influence the evaluation of extreme hardship.
Psychological evaluations provide strong, professional evidence to support waiver applications by:
Resource: USCIS Policy Manual on Hardship
A hardship evaluation assesses both possible outcomes:
Core Evaluation Areas:
Depression
Anxiety Disorders
Post-Traumatic Stress Disorder (PTSD)
Adjustment Disorders
Acculturation Stress
Separation Anxiety (Adults and Children)
Educational and Developmental Harm
BASIC CONCEPTS
What is the difference between the I-601 and I-601A waiver?
The I-601 waiver is filed to request forgiveness for multiple grounds of inadmissibility, including unlawful presence, misrepresentation, certain crimes, and health-related issues. It is usually filed after a denial at a U.S. embassy or consulate abroad.
The I-601A provisional waiver is more limited: it only waives unlawful presence and is filed while the applicant is still in the U.S., before leaving for a consular interview.
What does “unlawful presence” mean under U.S. immigration law?
Unlawful presence is the time an individual spends in the U.S. without being admitted or paroled and without having legal status. Accruing more than 180 days of unlawful presence triggers a 3-year bar upon departure; one year or more triggers a 10-year bar.
Who is a “qualifying relative” for purposes of these waivers?
For both I-601 and I-601A waivers, the qualifying relative must be a U.S. citizen or lawful permanent resident (LPR) spouse or parent. Children are not qualifying relatives, though their hardship may support a parent’s claim.
Can I use both the I-601 and I-601A waiver?
Generally no. If you’re eligible for the I-601A (provisional) waiver for unlawful presence, you file it while inside the U.S. If you’re already outside the U.S. or are inadmissible for other reasons besides unlawful presence, you must file the I-601 waiver.
Can a waiver be filed before the inadmissibility finding is made?
Only the I-601A can be filed before a finding of inadmissibility—based on anticipated unlawful presence after leaving for a consular interview. The I-601 waiver is filed after the consular officer finds you inadmissible.
QUALIFYING RELATIVES & ELIGIBILITY
Can hardship to my children count if they’re not qualifying relatives?
Hardship to children can support a waiver, but only insofar as it causes extreme hardship to the qualifying spouse or parent. For example, if your U.S. citizen child has serious health issues that would emotionally devastate your U.S. citizen spouse, that could be persuasive.
Can my fiancé(e) be my qualifying relative?
No. Only a spouse or parent who is a U.S. citizen or LPR can be a qualifying relative for I-601 and I-601A waivers.
Can I file a waiver based on hardship to my LPR spouse if I’m not married yet?
You must be legally married before you apply. Immigration law does not allow waivers based on future or intended relationships.
Does the U.S. citizen or LPR qualifying relative have to be the petitioner?
No. The qualifying relative for hardship purposes does not need to be the same person who petitioned for your green card.
Can I apply for a waiver if I’ve been ordered removed or deported?
Yes, but not with an I-601A. You may need an I-212 waiver in addition to the I-601, depending on your circumstances.
APPLICATION PROCESS
Where do I file the I-601A waiver?
The I-601A is filed with USCIS while the applicant is inside the U.S. If approved, you attend your consular interview abroad, with the waiver already granted.
Where do I file the I-601 waiver?
The I-601 is generally filed after a denial by a U.S. consular officer abroad, but can sometimes be filed in the U.S. in special circumstances (e.g., certain adjustment of status cases).
How long does it take to process the I-601A waiver?
USCIS processing times vary, but I-601A waivers often take 6 to 18 months, depending on workload and case complexity. You can check current times on the USCIS processing time page.
How long does it take to process the I-601 waiver?
I-601 waivers also take 6 to 18 months, sometimes longer depending on the consulate, the type of inadmissibility, and volume of applications.
Can I expedite an I-601 or I-601A waiver?
USCIS allows expedite requests only under certain criteria, such as humanitarian emergencies, severe financial loss, or national interest. Supporting documentation must be strong and credible.
Do I need a lawyer to file an I-601 or I-601A waiver?
A lawyer is not required but is strongly recommended. The legal standard is high, and a lawyer can help build a compelling argument with evidence, legal citations, and expert evaluations (e.g., psychological assessments).
DOCUMENTATION AND EVIDENCE
What is considered “extreme hardship”?
Extreme hardship is a level of suffering that goes beyond the normal consequences of family separation or relocation. USCIS evaluates hardship in five areas: medical, financial, emotional, educational, and country-specific conditions.
What types of evidence are helpful in proving extreme hardship?
Are psychological evaluations helpful?
Yes. A professionally prepared psychological evaluation can show how separation or relocation would severely affect the mental health of the qualifying relative, helping to support a claim of extreme emotional hardship.
Can I submit evidence about the country I would relocate to?
Absolutely. Evidence about dangerous or unstable conditions in your home country (e.g., high crime, lack of medical care, civil unrest) can support claims of hardship to a qualifying relative who would be forced to move there or worry about your safety.
COMMON ISSUES AND COMPLICATIONS
What happens if my I-601A waiver is denied?
If denied, you can remain in the U.S. but will not be able to proceed with your green card process through consular processing unless you reapply or pursue other options. You are not immediately deported.
Can I appeal a denied I-601 or I-601A waiver?
No. I-601A waivers cannot be appealed, but you may refile with stronger evidence. I-601 waivers can be appealed to the Administrative Appeals Office (AAO), or in some cases refiled with additional information.
Can I file another waiver after a denial?
Yes, in most cases. You can file a new application if your circumstances change or if you can provide stronger documentation than before.
Does a waiver approval guarantee a green card?
No. Approval of a waiver only removes the inadmissibility barrier. You must still complete the rest of the immigration process and meet all other requirements (e.g., medical, security, admissibility for other reasons).
Can hardship to my qualifying relative in both scenarios—separation and relocation—be considered?
Yes. You can present hardship evidence for both scenarios, although you only need to prove one under current USCIS guidance.
ADVANCED SCENARIOS
Can I apply for a waiver if I overstayed on a visa and then left the U.S.?
If your overstay resulted in unlawful presence over 180 days, you may be subject to a bar and need a waiver upon departure. Consult a legal professional for a case-specific analysis.
Is it possible to win a waiver if the qualifying relative is in good health and financially stable?
Yes—but your case must show that hardship goes beyond ordinary separation. You may need to emphasize emotional, cultural, educational, or country-specific factors.
Can I use hardship to a disabled U.S. citizen child to support a waiver?
Not directly (unless the child is also a qualifying relative under INA 212(h)), but if the hardship to the child causes emotional, financial, or physical strain on the qualifying parent or spouse, it can help build your case.
Can a waiver help if I committed immigration fraud?
Possibly. The I-601 waiver includes forgiveness for fraud or misrepresentation if you can prove extreme hardship to a qualifying relative. However, the fraud must not involve national security or false claims to U.S. citizenship.
POST-WAIVER STEPS
What happens after an I-601A waiver is approved?
You must depart the U.S. for a visa interview at a U.S. consulate abroad. The waiver does not guarantee approval of your visa but removes the unlawful presence bar from consideration.
How long will I stay outside the U.S. after my consular interview?
In most I-601A cases, applicants stay outside the U.S. for 1–3 weeks, though delays may occur depending on background checks or document requests.
Can my waiver be revoked after approval?
Yes, if new information arises (e.g., criminal charges, fraud) that affects your admissibility. It’s critical to remain truthful and update USCIS if circumstances change.
Extreme hardship is a subjective standard. USCIS officers have broad discretion, meaning two officers could view the same case differently. A skilled immigration attorney can:
Here’s a quick reference to what you may need:
Proving extreme hardship takes time, detail, and strategy. But with the right legal support, personalized documentation, and emotional storytelling, your waiver has a stronger chance of approval.
For additional guidance, explore the USCIS Extreme Hardship Policy Manual.
Waiver applications are complex, and USCIS decisions can be unpredictable. A skilled immigration attorney can:
Need Help? Extreme hardship cases are sensitive, emotional, and fact-specific. An experienced immigration attorney can help:
Navigating the I-601 or I-601A waiver process is complex, emotionally draining, and full of high stakes. Your family’s future depends on how well your case is prepared, argued, and documented.
That’s why working with an experienced immigration law firm like Herman Legal Group can make all the difference.
Here’s what sets us apart:
Don’t take chances with your future. A small mistake or missing document can lead to years of separation from the ones you love.
Schedule your confidential consultation with Herman Legal Group today:
We’re here to help you stay together—and move forward.
If you’ve received a denial notice for your Form I-140, Immigrant Petition for Alien Worker, don’t panic.
Denial can be frustrating, and feel like a major setback—especially if you’ve already invested months or years in your employment-based green card process. The employment-based immigrant visa is a significant milestone for foreign workers seeking U.S. permanent residency, and the I-140 petition process is a crucial step in obtaining this visa. But a denial is not necessarily the end of the road. In many cases, applicants have options to regroup, strengthen their case, or explore new immigration strategies.
This guide will help you understand your options after an I-140 denial, including how to strengthen your case, appeal, or take alternative actions—all while maintaining your legal immigration status.
Form I-140 is a key step in applying for an employment-based green card. It shows that:
When USCIS denies an I-140 petition, it usually provides a written notice with detailed reasons for the decision. Understanding those reasons is critical to deciding your next move.
Before we get into your options, here are the most common reasons for I-140 denials:
If you’re unsure why your petition was denied, request a Freedom of Information Act (FOIA) copy of your file from USCIS: Submit FOIA Request to USCIS
Receiving a denial notice from USCIS can be a disappointing and overwhelming experience, especially after investing significant time and resources into the application process. However, it’s essential to understand the denial notice and the specific grounds for denial to determine the best course of action.
When reviewing the denial notice, it’s crucial to carefully read and understand the reasons for denial. The notice will typically outline the specific grounds for denial, which may include:
By thoroughly examining the denial notice, you can pinpoint the exact issues that led to the denial. This understanding is vital for deciding whether to refile, appeal, or explore alternative immigration options. Identifying the specific grounds for denial will help you address the deficiencies in your case and strengthen your future applications.
There is no limit to how many times you can file Form I-140. If you choose to refile, you must take the denial reasons into account and strengthen your case.
Pro Tip: Include a cover letter summarizing the key changes and improvements in the new submission.
???? Download USCIS Form I-140: USCIS Form I-140 Official Page
If you believe the denial was in error, you can file an appeal with the Administrative Appeals Office (AAO).
???? Appeal form and info: Form I-290B: Notice of Appeal or Motion
Note: Filing an appeal does not automatically stop your clock if your visa status is expiring. You must maintain your lawful status separately.
Instead of a full appeal, you might want to file a motion to reopen (based on new evidence) or motion to reconsider (based on legal error).
These are also filed using Form I-290B, but:
Each motion is considered on its own merits, so it is crucial to address the reasons for the initial denial and ensure that all required evidence and information are accurately included in the new submission.
If your I-140 continues to be denied—even after appeals—there are other immigration routes you might qualify for.
Consider These Alternatives:
Each option has different requirements, so speak with a qualified immigration attorney to evaluate your eligibility.
If your I-140 is denied while you’re already in the U.S., it’s vital to maintain your legal status.
Strategies to Stay in Status
???? Check I-94 expiration and travel history
If your visa expires, you may begin accruing unlawful presence—which can lead to bars on reentry.
In some cases, it may make sense to step back from the process and regroup from abroad.
A denial of an I-140 petition can have significant implications for the beneficiary’s immigration status.
A denial of an I-140 petition can affect the beneficiary’s immigration status in several ways:
Given these potential impacts, it’s essential to consult with an experienced immigration attorney to understand the specific implications of a denial on your immigration status. An attorney can help you navigate the complexities of your situation, explore your options, and determine the best course of action to maintain or adjust your status.
Immigration law is complex. Even if you filed the original petition without a lawyer, now is the time to consult an experienced immigration attorney.
An attorney can help you:
Find a licensed immigration lawyer near you:
AILA Immigration Lawyer Search Tool
If you are in the U.S. on a nonimmigrant visa (like H-1B or F-1), you must continue maintaining lawful status while deciding your next steps.
Important tips:
USCIS Guide:
Changing or Extending Nonimmigrant Status
The EB-2 Category includes the following subcategories:
|
Eligibility Track |
Requirements |
| Advanced Degree | Master’s or equivalent, or bachelor’s + 5 years experience |
| Exceptional Ability | Show recognition, awards, letters from experts |
| National Interest Waiver | Satisfy 3-prong test and prove U.S. benefit |
The EB-2 process can include multiple stages, each with its own risks for denial:
Let’s break down the most common issues.
The EB-2 green card is for individuals with advanced degrees or exceptional ability in science, business, or the arts. Approval rates are generally high, with most denials stemming from preventable issues.
|
Fiscal Year |
Approval Rate |
Denial Rate |
| 2021 | 94% | 6% |
| 2022 | 91% | 9% |
| 2023 (est.) | 83%–96% | 4%–17% |
Note: Applicants from India and China often face longer wait times due to high demand, but approval criteria remain the same.
???? Learn more: USCIS I-140 Petition Information
To sponsor you for an EB-2 visa (unless filing NIW), your U.S. employer must first obtain a PERM Labor Certification from the Department of Labor (DOL). This confirms that:
???? Learn About PERM Labor Certification
Applicants who qualify for an NIW can bypass the labor certification stage and self-petition. But these petitions must meet a three-prong legal test:
Whether you file with an employer or as a self-petitioner under NIW, USCIS requires Form I-140 to establish eligibility. Denials at this stage are often due to documentation or eligibility errors.
| Issue | Why It Triggers Denial |
|---|---|
| Position doesn’t meet EB-2 criteria | EB-2 requires at least a U.S. master’s degree or bachelor’s + 5 years of progressive experience. A 3-year bachelor’s from overseas often fails. |
| Applicant doesn’t meet job qualifications | Missing transcripts, weak work history documentation, or vague job duties. |
| Employer cannot pay prevailing wage | Financial documents (like tax returns and W-2s) are missing or insufficient. |
| Errors in form or inconsistencies with PERM | Mismatches in dates, job titles, or salaries cause USCIS to issue RFEs or denials. |
| Outdated or missing support letters | Weak expert letters or template-based recommendations can sink a petition. |
| Inaccurate labor certification application | Inconsistencies in the labor certification application can lead to denials. Employers must ensure accurate and comprehensive documentation. |
| Incomplete I-140 petition by prospective employer | The prospective employer must ensure the I-140 petition is filed accurately with all necessary supporting documentation to demonstrate eligibility. |
Myth 1: If I receive an EAD (work authorization) and travel permit after filing my I-485, I’m guaranteed approval.
Reality: USCIS often approves EADs before adjudicating the I-140 or NIW. If the I-140 is denied, your work and travel authorization will be revoked.
Myth 2: A degree and years of experience automatically qualify you for an NIW.
Reality: You still need to pass the three-prong test showing national impact and your unique ability to contribute to the field.
1. What is Form I-140, and why is it important?
Form I-140 is the Immigrant Petition for Alien Worker, filed by a U.S. employer to sponsor a foreign national for a green card based on employment. It is a critical step in most employment-based green card categories (e.g., EB-1, EB-2, EB-3).
2. What are the most common reasons USCIS denies I-140 petitions?
3. Will USCIS provide a written explanation if my I-140 is denied?
Yes. You will receive a formal Notice of Decision outlining the reasons for denial.
4. Can I appeal a denied I-140 petition?
Yes. You may file an appeal with the Administrative Appeals Office (AAO) within 30 days of the decision (or 33 days if the denial was mailed). You may also file a motion to reopen or motion to reconsider with USCIS.
5. What is the difference between an appeal, a motion to reopen, and a motion to reconsider?
6. What if the I-140 was denied due to the employer’s inability to pay the offered wage?
You may submit additional financial evidence showing the employer had the ability to pay the wage from the priority date onward, such as:
7. Can I file a new I-140 petition after a denial?
Yes. A new petition can be filed, especially if you have corrected the issues that led to the previous denial. However, USCIS may consider previous denials when reviewing the new petition.
8. Will my priority date be lost if my I-140 is denied?
If the petition was not approved, the priority date is generally not retained. However, if a previous I-140 was approved, you may be able to retain that priority date when filing a new petition.
9. What happens if my I-140 is denied while I’m on an H-1B visa?
You may lose eligibility for H-1B extensions beyond the 6-year limit. If your underlying H-1B time is nearly exhausted, you must quickly act to preserve your status, switch to another visa, or prepare to depart the U.S.
10. Can I remain in the U.S. if my I-140 is denied and I’m out of status?
No. Once the I-140 is denied and you are out of status (e.g., OPT expired, H-1B maxed out), you are generally accruing unlawful presence, which can trigger bars to reentry if you stay too long.
11. What if USCIS denied the I-140 due to fraud or willful misrepresentation?
This is very serious. A fraud finding can lead to permanent inadmissibility under INA §212(a)(6)(C)(i). You should consult with an experienced immigration attorney immediately.
12. Can I transfer my I-140 to a new employer if it was denied?
No. Only approved I-140 petitions can serve as the basis for portability under AC21 (American Competitiveness in the 21st Century Act). A denied petition cannot be transferred or ported.
13. Can I refile with a different employer if my I-140 was denied?
Yes. A new employer can file a new PERM and I-140 for you, but you may lose your priority date unless a previous I-140 was approved.
14. Can I sue USCIS if I believe the denial was unfair?
In limited cases, yes. You may file a lawsuit in federal court (under the Administrative Procedure Act), but you must usually exhaust administrative remedies first (e.g., motions, appeals).
15. How long does an I-140 appeal or motion take?
16. Can premium processing speed up a motion or appeal?
No. Premium processing is only available for initial I-140 filings or re-filings—not for appeals or motions.
17. If my I-140 is denied, is my underlying PERM labor certification still valid?
Not necessarily. A PERM certification is tied to the original job offer and sponsoring employer. If USCIS found issues with the PERM (e.g., fraud or invalidity), it may be considered invalid going forward.
18. Can I refile using the same PERM labor certification after denial?
Possibly. If the PERM is still valid (not expired or revoked), you may refile another I-140 with improved documentation. But note: PERM is valid for only 180 days after certification.
19. Can my spouse and children stay in the U.S. if my I-140 is denied?
Only if they have independent status (e.g., spouse has H-1B or student visa). If they are dependents (H-4, L-2) and you lose status, they likely will too.
20. What happens to my pending I-485 if my I-140 is denied?
Your Form I-485 (Adjustment of Status) will be automatically denied if it was based on the I-140 that was denied.
21. Can I refile both I-140 and I-485 after denial?
Yes, if you are still eligible, in status, and the employer is willing to support a new filing. Timing and eligibility are critical.
22. Can I downgrade from EB-2 to EB-3 after an I-140 denial?
Yes, if you have a qualifying PERM and meet the requirements for EB-3. A new I-140 would need to be filed. Downgrades are often strategic, especially in periods of visa bulletin retrogression.
23. Can an I-140 denial impact future immigration benefits or visas?
Potentially. USCIS may review previous denials and check for patterns of inconsistency, misrepresentation, or fraud. However, a denial alone does not bar future petitions unless fraud was involved.
24. What if USCIS denied the petition due to inability to prove the beneficiary met experience requirements?
You may refile with better evidence, such as:
25. What are uncommon or overlooked reasons for I-140 denial?
26. What should I do immediately after an I-140 denial?
27. Does a denial affect my eligibility for future H-1B extensions beyond the 6th year?
Yes. H-1B extensions beyond 6 years require an approved I-140 or a pending green card process (e.g., 365+ days after labor certification filing). Denial may stop your eligibility unless corrected quickly.
28. Can an I-140 be denied even after USCIS sends a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)?
Yes. An RFE or NOID gives you a chance to respond, but USCIS may still deny the petition if your response is inadequate or unpersuasive.
29. Can a denied I-140 be reopened years later?
Only in rare cases. Generally, you must file a motion to reopen within 30 days of the decision. Late motions must show exceptional circumstances.
30. Should I change employers after an I-140 denial?
Only with great care. Changing employers after denial may reset your green card process entirely. You may lose priority dates and PERM validity, depending on the case.
Why You Should Consult the Herman Legal Group After an I-140 Denial
Facing an I-140 denial can feel like your future is on pause—but you don’t have to face it alone. The Herman Legal Group has helped countless individuals and employers successfully navigate complex immigration setbacks. Here’s why we should be your first call:
Don’t risk your immigration future. A denial doesn’t have to be the end—it can be the start of a stronger case. Contact the Herman Legal Group today for a confidential consultation and find out how we can help you move forward.
Let’s turn your setback into a success story.
Need Legal Help?
Schedule a consultation with the Herman Legal Group to evaluate your I-140 case and explore your next steps.
Resources and Tools
Before attending the K-1 visa interview at a U.S. embassy or consulate, your fiancée must complete an immigration medical exam with an authorized physician. This is a critical step in your K-1 visa journey and helps ensure you meet the health requirements under U.S. immigration law.
This immigration medical exam ensures that the applicant does not have any health conditions that would make them inadmissible under U.S. immigration law.
This guide breaks down everything you need to know about the medical exam for a K-1 visa — from scheduling to required documents, what to expect, how long the results last, and more.
All applicants for a K-1 fiancé(e) visa must undergo a medical examination by a U.S. embassy-approved panel physician. This is a legal requirement under the Immigration and Nationality Act (INA), Sections 212(a) and 221(d).
The medical examination assesses whether applicants have any health conditions that would make them inadmissible to the United States on health-related grounds.
The purpose is to:
Screen for communicable diseases
Verify vaccination status
Detect mental health or substance-related concerns
Evaluate any other health issues that could affect admissibility
Important: Medical exams conducted by unauthorized doctors — even in your home country — will not be accepted.
U.S. citizen files Form I-129F with USCIS
USCIS approves the petition
Petition goes to the National Visa Center (NVC)
NVC forwards the case to the U.S. embassy or consulate in the foreign fiancé(e)’s country
The fiancé(e) completes the DS-160 visa application, schedules the visa interview, and undergoes the medical exam
All K-1 visa applicants, regardless of age
K-2 children must also take the exam but may be exempt from some tests (like chest X-rays) if under age 15
The medical exam includes:
Review of medical history
Physical examination (heart, lungs, abdomen, etc.)
Mental health screening
Blood tests for syphilis and other communicable diseases
Tuberculosis (TB) testing (skin test or chest X-ray). Tuberculosis testing is conducted in accordance with guidelines from the Centers for Disease Control and Prevention (CDC) to ensure proper disease control.
Vaccination assessment and administration, if necessary
Note: Vaccination records are reviewed during the medical exam, but full compliance is typically required later during Adjustment of Status (after marriage in the U.S.).
If you want you can ensure that all of your vaccinations are up to date and verified at the K-1 visa medical exam, so that you do not have to have another medical exam in the U.S. to apply for the green card.
You can only schedule the medical exam after you receive instructions from the U.S. embassy or consulate handling your visa interview.
It is crucial to have the medical examination performed by an Embassy-approved physician to ensure it meets the required standards.
Book the earliest available appointment, at least 5–7 days before your K-1 visa interview
Follow instructions from the specific U.S. embassy or consulate in your country
Make sure you bring the following documents to your appointment:
Valid passport or government-issued photo ID
Four recent passport-size photos (check photo requirements)
Visa interview appointment letter
Vaccination records (from your doctor or childhood immunization card)
Medical history or reports if you have any chronic or past illnesses
Payment receipt or fee in local currency (varies by country)
Completed medical questionnaire, if required
Always confirm country-specific requirements with the embassy or panel physician in advance.
If you have a history of serious illness or a current condition, bring supporting documents from your doctor. This helps the panel physician assess your case fairly.
Tuberculosis: Prior positive tests or treatment? Bring medical reports, chest X-ray results, and medication history. If you have had a previous positive skin test for tuberculosis, bring a written medical report from your doctor detailing your treatment.
Syphilis: Must show proof of completed treatment signed by a doctor.
Mental health or behavioral issues: Must disclose any condition that involved harm to yourself, others, or property. Supporting documents will help determine admissibility.
Tip: Bring X-ray films or scans if you had TB or abnormal chest results in the past.
In some countries, the panel physician sends results directly to the embassy
In others, they give you a sealed envelope to bring to the interview
Do not open the sealed envelope
If your medical exam is too close to your interview date, you may need to reschedule the visa interview to ensure the embassy receives your results in time. However, if you attend the visa interview and the medical exam results are not ready, the consular officer should provide you additional time to supplement the record.
As mentioned above, vaccination verification is not required for the K-1 medical exam. However, it is recommended to have your vaccination records updated and verified by the civil surgeon so that you do not need to go through this step later in the U.S. after you marry and file for a green card.
Meeting the vaccination requirement is essential for the Adjustment of Status process after marriage.
The following vaccines are typically required under CDC guidelines:
Measles, Mumps, Rubella (MMR)
Tetanus-diphtheria
Hepatitis A and B
Varicella (Chickenpox)
Influenza (during flu season)
COVID-19 (current series or proof of waiver)
If you are missing any, the panel physician will administer them or give you instructions on how to get them before your visa is approved.
If you are just starting out in the K-1 visa process, we would like to dive a bit into the basis K-1 requirements (and also prepare you for the K-1 visa interview)
The K-1 nonimmigrant visa allows a foreign-citizen fiancé(e) of a U.S. citizen to travel to the United States for the purpose of getting married. Once in the U.S., the couple must marry within 90 days of the foreign fiancé(e)’s arrival. After marriage, the foreign spouse can apply for a green card (Adjustment of Status) with U.S. Citizenship and Immigration Services (USCIS).
Children of K-1 applicants may be eligible for K-2 visas and must apply separately.
To qualify:
You must be the beneficiary of an approved Form I-129F (Petition for Alien Fiancé[e])
Both parties must be legally free to marry at the time of filing
The marriage must be legal in the state where it will occur
The couple must have met in person within the past two years (exceptions apply in rare cultural or hardship cases)
Syrian Applicants: All interviews for Syrian K-1 visa applicants are conducted at the U.S. Embassy in Amman, Jordan.
India: As of December 1, 2017, all K visas for India are processed at the U.S. Consulate General in Mumbai.
Same-Sex Couples: U.S. law recognizes same-sex marriages for immigration purposes.
IMBRA provides protections for K-1 applicants, including background information about the U.S. petitioner. These details are disclosed during your visa interview.
The U.S. citizen files Form I-129F with the appropriate USCIS address.
After approval, the petition is sent to the National Visa Center (NVC).
NVC assigns a case number and forwards the petition to the U.S. Embassy or Consulate where the foreign fiancé(e) resides.
Direct Filing Addresses for I-129F
File Form I-129F at the USCIS Dallas lockbox.
U.S. Postal Service (USPS):
USCIS
Attn: I-129F
P.O. Box 660151
Dallas, TX 75266-0151
FedEx, UPS, and DHL deliveries:
USCIS
Attn: I-129F (Box 660151)
2501 South State Highway 121 Business
Suite 400
Lewisville, TX 75067-8003
We cannot adjudicate this form at USCIS international offices.
After receiving instructions from the NVC, the foreign-citizen fiancé(e) must:
Submit Form DS-160 online
Pay visa application fees
Schedule and complete a medical exam
Gather necessary documentation for the visa interview
K-2 Visa Applications Children must:
Be unmarried
Be listed on Form I-129F
Submit separate applications and fees
Bring the following to your interview:
DS-160 confirmation page
Passport (valid 6+ months beyond your stay)
Birth certificate
Divorce/death certificates (if applicable)
Police certificates (current and past residence)
Medical exam results
Form I-134 (Affidavit of Support), if requested
Two passport-style photos
Proof of relationship with U.S. citizen fiancé(e)
Visa application fee payment
Translation Requirements All non-English documents must include a certified translation with a signed statement confirming:
Accuracy of the translation
Translator’s competency
All K-1/K-2 applicants must:
Undergo a medical exam by a panel physician approved by the U.S. Embassy. These medical examinations are conducted to ensure compliance with U.S. immigration laws.
Schedule the exam at least 5 working days before the visa interview
While vaccinations are not required to receive the K visa, they are required later during Adjustment of Status.
Financial Support Requirements
Applicants must show they won’t become a public charge in the U.S. Evidence includes:
Proof of personal finances
Form I-134 from the U.S. citizen sponsor
Note: Income requirements for Form I-134 are lower than for Form I-864 (used after marriage).
|
Service |
Cost |
|
Form I-129F filing fee |
See USCIS Fee Page |
|
DS-160 visa application fee |
$265 (each applicant) |
|
Medical exam |
Varies by country |
|
Adjustment of Status (Form I-485) |
See USCIS AOS Fees |
Read the “Rights and Protections” pamphletbefore your interview. It includes:
Your rights in the U.S.
How to get help if facing abuse or exploitation
You will also be told of any criminal background information USCIS received about your U.S. citizen fiancé(e).
Form I-129F is valid for four months from USCIS approval. A consular officer can extend the petition if needed.
Certain conditions may make an applicant ineligible, such as:
Drug use or trafficking
Visa overstays
Fraudulent documents
Waivers may be available. See the list of ineligibilities.
You’ll get a sealed envelope of documents; do not open it
Must enter the U.S. within 6 months of visa issuance
Must marry within 90 days of entry
Children with K-2 visas must enter with or after you
No, but they must:
Be listed on the I-129F
Submit separate visa applications
Pay separate fees
File their own Adjustment of Status applications after your marriage
Children must:
Use their K-2 visa within one year of your K-1 visa issuance
Otherwise, a separate immigrant visa petition is needed
A visa allows you to request entry, but U.S. Customs and Border Protection (CBP) makes the final decision. Bring:
· Passport with visa
· Sealed immigration packet
You must:
File Form I-485 to adjust status after marriage
May apply for work authorization (Form I-765)
Learn About AOS & Work Authorization
You can apply after entering the U.S. at Social Security Administration
Read the Guide for New Immigrants to understand your responsibilities and rights as a green card holder.
How long is the K-1 visa medical exam valid?
Six months from the exam date (or less, depending on health conditions)
Can I use my own doctor for the exam?
No. Only panel physicians approved by the embassy are authorized to conduct the medical exam for a visa applicant.
Do K-2 children need a medical exam?
Yes, but kids under 15 usually don’t need X-rays or blood tests.
What is the cost of a K-1 visa medical exam?
Varies by country and provider. Generally ranges from $300–$500. Check embassy-specific instructions here: U.S. Embassy Medical Exam Fees
Can I get vaccinated in the U.S. instead?
Yes — you can wait to meet full vaccination requirements until you file for Adjustment of Status after marriage.
What if I can’t get a medical appointment before my interview?
Reschedule your K-1 visa interview to a date that is at least 5 days after your medical appointment.
My visa interview is scheduled, but no medical appointments are available before it. What should I do?
Try to book the soonest possible exam. If your medical isn’t complete by the interview, the embassy will pause visa processing until your results are received. Notify the embassy of your situation.
Can I have the medical exam after my interview?
Yes, but your visa can’t be issued until your medical results are submitted. It’s best to complete the medical before your interview to avoid delays.
I don’t know my U.S. address yet. What should I enter?
If unsure, use the address of a friend, sponsor, or temporary contact in the U.S. You can update it later during the adjustment of status process if it changes.
I started my case at another embassy. Can you use that medical report?
No. Medical exams are not transferable between embassies. You must be examined again by the
What vaccinations do I need?
Required vaccinations depend on your age and include:
MMR (measles, mumps, rubella)
Tetanus
Influenza (if in season)
Hepatitis B (in some cases)
Check the CDC list of required vaccines and bring all existing records with you.
Can I get a copy of my medical report?
Yes, you can request a personal copy of your medical report. The official sealed copy is sent directly to the U.S. Embassy.
I am pregnant. Can the medical exam be waived?
The exam is still required, but some procedures (like X-rays) may be delayed or waived with medical documentation. Always inform the doctor in advance.
My medical is about to expire. Can it be extended?
Medical results are valid for six months. If your visa isn’t issued within that time, you may need a new medical.
General Questions
Do Children Need Chest X-Rays or Blood Tests?
Typically, children under 15 are not required to undergo chest x-rays or blood tests. However, if there is a known health concern or a history of tuberculosis exposure, the panel physician may request additional testing.
Learn more from the CDC’s immigrant health guidelines:CDC Technical Instructions for Panel Physicians
What If the Applicant Has a Learning or Intellectual Disability?
Applicants with cognitive, intellectual, or developmental disabilities must provide a report from their physician, psychologist, or educational professional. This report should detail:
The nature and diagnosis of the disability
Any treatment or therapies
Educational accommodations or supervision needs
Why Is Medical Information Required for Visa Applicants?
Under the Immigration and Nationality Act (INA) Sections 212(a) and 221(d), certain medical conditions can make an applicant inadmissible. If you do not comply with the medical exam process, your visa application could be delayed or denied.
Even if your visa is not granted, your medical records remain confidential under INA Section 222(f).
What Happens During the Medical Exam?
Here’s what to expect:
Identification Check: Bring your passport or photo ID and your visa interview appointment letter.
Medical History Review
Physical Exam: The doctor will examine your:
Eyes, ears, nose, throat
Heart and lungs
Abdomen and lymph nodes
Skin and extremities
Chest X-ray (age 15+)
Blood Test for Syphilis (age 15+)
Some panel physicians send the results directly to the U.S. embassy or consulate. In other cases, you’ll receive sealed exam results and an x-ray to bring to your interview.
Important: This is not a comprehensive physical. It only checks for conditions relevant to immigration eligibility. For full health care, see your primary doctor.
Medical History and Conditions
What If I Previously Tested Positive for Tuberculosis (TB)?
Bring documentation including:
A certificate from your physician about the positive TB test
Dates and duration of treatment
Names of medications used
Prior chest X-rays (actual films if available)
Your exam will include a new chest X-ray and possibly further testing.
What If I Had Syphilis?
Bring a certificate signed by a licensed physician or public health official that confirms:
Treatment dates
Type and dosage of medication
Confirmation that the infection has been treated
If you were never treated, a doctor’s explanation is required.
Do Pregnant Women Need a Chest X-Ray?
Yes, pregnant applicants must have a chest X-ray if they are in a country that follows the CDC’s 2007 TB Technical Instructions.
Precautions include:
Signed consent from the applicant
Use of double-layer, wrap-around lead shielding for fetal protection
What If I Have a History of Violent or Harmful Behavior?
Provide documentation if you’ve ever engaged in:
Self-harm or suicide attempts
Violence toward others
Destruction of property
The panel physician will evaluate whether this behavior was related to mental health, substance use, or a medical issue.
What If I Was Treated for Mental Illness, Substance Abuse, or Hospitalized?
You must bring documentation showing:
Diagnosis
Dates and duration of treatment
Type of care received
Prognosis (outlook or recovery status)
This helps the panel physician assess public health risk and admissibility.
What If I’m Being Treated for a Chronic Condition or Take Medications?
Be prepared to provide:
Names and purposes of medications
Diagnosis and prognosis
Treatment history
Bring a medical summary or letter from your treating physician if possible.
Can I Have My Exam During My Period?
Yes. Menstruation does not affect your ability to complete the medical exam.
Panel Physicians
Can I Use My Regular Doctor for the Medical Exam?
No. Only U.S. government-approved panel physicians may perform these exams.
Find approved doctors here:Find a Panel Physician
Can I Do the Medical Exam in the U.S. if I’m Applying from Abroad?
No. If you’re applying for a visa abroad, your exam must be conducted by an overseas panel physician associated with the embassy or consulate.
Vaccination Requirements
Which Vaccines Are Required for Immigration?
You may need proof of the following vaccinations:
Hepatitis A and B
Influenza and Hib (Haemophilus influenzae type b)
Measles, Mumps, and Rubella (MMR)
Meningococcal
Pneumococcal
Polio
Pertussis (Whooping Cough)
Rotavirus
Tetanus and Diphtheria
Varicella (Chickenpox)
Don’t Have a Vaccination Record?
That’s okay. The panel physician will:
Review your history
Recommend necessary vaccinations
Administer missing vaccines (often at an additional cost)
Can I Skip a Vaccine for Medical Reasons?
Yes. Waivers may be granted if a panel physician confirms that:
A vaccine is medically inappropriate (e.g., allergies, pregnancy, immune disorders)
Age or condition makes the vaccine unnecessary
Learn more about vaccination exemptions.
Navigating the K-1 visa process — especially medical and interview steps — can be overwhelming. That’s where we come in.
Herman Legal Group has over 30 years of immigration law experience helping couples reunite in the U.S. We offer personalized support through:
K-1 visa filing and preparation
Interview and medical exam guidance
Adjustment of Status (green card) after marriage
Schedule a consultation:
Call 1-216-696-6170 or book online
Consultations available by phone, Zoom, WhatsApp, or in-person.
Related Resources
CDC Medical Exam Guidance: https://www.cdc.gov/immigrantrefugeehealth/
U.S. immigration law has long prioritized family unification, allowing U.S. citizens and lawful permanent residents (green card holders) to sponsor their immediate family members, including spouses, for lawful permanent residence.
If you’re a U.S. citizen or lawful permanent resident (green card holder) and your spouse is undocumented, you may wonder if sponsoring them for a green card is even possible?
The answer: Yes, in many cases you can sponsor your undocumented spouse, but the path to permanent residency can be complex, time-sensitive, and often emotionally difficult.
An estimated 1.2 million undocumented immigrants in the U.S. are married to U.S. citizens—and many more are married to green card holders. Applying for a marriage-based green card gives your spouse a legal path to permanent residency and eventual citizenship. But the process can be complex—especially if your spouse entered the U.S. without permission or overstayed a visa. Learn more about whether a green card holder can sponsor a family member.
Due to immigration bars and reentry restrictions, many families are left separated for years, highlighting the widespread impact these legal challenges have on family unity and stability.
Whether they overstayed a visa or entered the U.S. without inspection, it is still possible in many cases to sponsor them for a green card—though the path can be more complex, risky, and time-sensitive. The role of the U.S. citizen spouse is crucial in navigating these legal pathways, which can include parole programs and other measures to ease obstacles to legal residency.
This guide explains everything you need to know, including how the process works, who qualifies, and what to do if your spouse has DACA, unlawful presence, or multiple entries.
Marriage in the United States is possible for undocumented immigrants—but there are some important legal and practical considerations depending on your and your partner’s immigration status. This guide will help you understand how to get married, what documents you may need, and how marriage can or cannot impact your immigration status.
Yes. Most states allow undocumented immigrants to get married. However, since marriage licenses are issued at the county level, the process and document requirements can vary depending on where you live.
⚠️ Important: Having a marriage license does not provide immigration status or protection from deportation.
If both people are undocumented, getting married is still legally possible, but documentation can be a challenge.
To increase your chances:
No. Marriage to a U.S. citizen does not automatically grant legal immigration status. A separate green card application process must be completed.
Here’s how a standard marriage-based green card process works:
The sponsoring spouse must also meet certain income requirements, which are determined by their household size.
But when your spouse is undocumented, additional legal hurdles can arise, especially if they entered illegally or overstayed a visa.
An undocumented spouse may fall into one of the following categories:
Each situation creates different legal consequences. Below, we explain each path.
Immigration options for your spouse will depend largely on how they first entered the U.S.
A spouse’s recent entry—whether legal or illegal—can significantly affect their eligibility for a green card or waivers.
If your spouse entered the U.S. without being inspected or paroled, they generally cannot apply for a green card from inside the U.S.—unless they qualify for special programs:
Spouses in this situation should be extremely cautious and consult an attorney before making any travel or application decisions, as certain actions could jeopardize their eligibility for a Green Card.
📘 Learn about applying for an I-601A waiver
Even if someone has been living in the U.S. for years, overstaying a visa or entering without inspection creates “unlawful presence.” If a person is unlawfully present for more than a year, they become subject to a 10-year bar from reentry if they leave the U.S. Here’s how that impacts their ability to get a green card.
Leaving the U.S. after accumulating unlawful presence may trigger:
| Unlawful Presence | Reentry Ban |
|---|---|
| 180–364 days | 3-year bar |
| 365+ days | 10-year bar |
| Reentry after deportation or multiple unlawful entries | Permanent bar |
Note: It is crucial to return legally to the U.S. after a period of unlawful presence. Returning legally—such as through a provisional waiver or travel document—can help avoid additional penalties and reentry bars.
📘 INA 212(a)(9)(B) – Bars to Reentry
When your spouse leaves the U.S. to attend the interview, they could be:
Always consult an immigration attorney before your spouse departs the U.S.
Before reviewing the table, it’s important to understand the key differences in the green card application process based on how the spouse entered the U.S. (legally or illegally) and whether the sponsor is a U.S. citizen or a green card holder. These distinctions affect eligibility, required steps, and whether the process can be completed inside the U.S. or requires applying from abroad.
| Your Status | Spouse’s Entry | Can They Get a Green Card? |
|---|---|---|
| U.S. Citizen | Entered legally | Yes, from within the U.S. (Adjustment of Status) |
| U.S. Citizen | Entered illegally | Possibly, but usually must leave the U.S. and apply from abroad |
| Green Card Holder | Entered legally | Yes, but must wait for visa availability (F2A category) and must be in legal status when filing for adjustment of status |
| Green Card Holder | Entered illegally | Possibly, with a waiver and consular processing |
| Any Status | Entered illegally multiple times or reentered after deportation | Likely ineligible due to permanent bar |
Let’s dive into the various scenarios!
Good news: Your undocumented spouse may apply for a green card from inside the U.S. even if they overstayed a visa, as long as:
This process is called adjustment of status, and it allows your spouse to stay in the U.S. while applying. However, they should not leave the country during the process without Advance Parole. Doing so could trigger a 3- or 10-year bar depending on how long they were unlawfully present. Learn more about visa overstays and unlawful presence.
Your spouse may still qualify—but they’ll likely need to:
Steps You’ll Take:
The application process for a provisional waiver can cost between $5,000 and $11,000 in attorney fees.
If your previous immigration status was H-1B and you experienced job termination, make sure to understand the H-1B grace period and your options after termination before beginning this process.
If your spouse qualifies, they may apply for a provisional unlawful presence waiver (Form I-601A) before leaving the U.S. This waiver is based on proving that their absence would cause extreme hardship to you (the U.S. citizen or LPR spouse).
Once approved, your spouse can:
For more information on unlawful presence bars and waivers, visit USCIS I-601A Waiver Guidance
After you file Form I-130:
Your spouse will be asked:
During the interview, an immigration officer will assess the provided information and determine eligibility. The immigration officer can impose penalties, such as barring re-entry to the U.S., depending on the immigrant’s history of unlawful residence. If the undocumented spouse’s application is denied, it can lead to the initiation or reinstatement of removal proceedings.
If approved, they’ll receive their visa, enter the U.S., and obtain a green card.
| Form/Service | Fee |
| Form I-130 | $675 |
| Form I-601A (Provisional Waiver) | $930 + $85 biometrics |
| Form DS-260 (Visa Application) | $325 |
| Medical Exam | $200–$500 |
| Attorney Fees (Estimate) | $5,000–$10,000 total |
Use the USCIS Fee Calculator for the most accurate information
This is a high-risk situation. Your spouse may be subject to a permanent lifetime ban if they:
These cases are extremely complex and may require legal intervention. Read about permanent inadmissibility bars here.
As a lawful permanent resident, you can sponsor your spouse—but the process is slower and more restricted than for U.S. citizens. U.S. citizens sponsoring undocumented spouses typically have a more straightforward process compared to permanent residents.
They must:
Unfortunately, due to 2023–2025 visa backlogs, the Final Action Date for the F2A category is no longer current.
As of April 2025:
This means your spouse can file an I-130, but must wait for the priority date to become current before completing the immigrant visa or green card application. Monitor the latest updates on the State Department Visa Bulletin.
NOTE: If he or she has overstayed, then they can not typically pursue adjustment of status, and instead will need to pursue an I-601A waiver and proceed with consular processing.
The process is more complicated and mirrors that of undocumented spouses of U.S. citizens:
Note: In the past, spouses of green card holders could not apply for provisional waivers, but this changed in 2016. Still, eligibility should be confirmed with a qualified immigration attorney.
How DACA Affects a Marriage-Based Green Card
DACA recipients can often apply for a marriage green card if:
If you are curious about the consequences or process when someone reports a fake marriage to USCIS, learn what happens when you report a fake marriage to USCIS.
If your DACA spouse entered the U.S. illegally but later traveled on Advance Parole and returned lawfully, they may be eligible to adjust status without leaving the U.S.
If they never traveled with Advance Parole and entered illegally, they may need to leave and apply through a consulate (after obtaining an I-601A waiver)
DACA status itself does not guarantee green card eligibility but may help avoid unlawful presence issues for some individuals. DACA affect eligibility for a marriage-based green card by allowing some recipients to avoid unlawful presence and reentry bars, especially if they use Advance Parole to travel and return lawfully.
Also, unlawful presence doesn’t begin to accrue until age 18. For childhood arrivals, the timing of their DACA application can impact eligibility, as applying before or shortly after turning 18 may help them avoid reentry bars if consular processing is needed.
More details here:DACA and Marriage-Based Green Cards.
If your spouse applied for adjustment of status, special considerations apply for DACA recipients, including the impact of DACA status, unlawful presence, and the use of Advance Parole.
Parole in Place (PIP) is a special immigration benefit offered by U.S. Citizenship and Immigration Services (USCIS) to help certain undocumented family members of U.S. military service members. Through PIP, undocumented spouses, parents, or children of military personnel may be granted temporary lawful status—even if they originally entered the U.S. without inspection (unlawfully).
This policy not only strengthens family unity and honors military service—it also opens the door to applying for a green card without leaving the U.S.
To qualify, the applicant must be:
The applicant must be living in the U.S. without lawful immigration status, usually due to unlawful entry (e.g., crossing the border without a visa).
If approved, USCIS will grant the applicant “parole” for a period (usually 1 year, renewable), allowing them to remain in the U.S. legally during that time. With this, they can also apply for work authorization (Form I-765).
But most importantly:
PIP provides a legal entry record (“parole”) that makes an undocumented person eligible to apply for a green card through a process called adjustment of status—without having to leave the U.S.
Normally, if someone entered the U.S. unlawfully—even if they married a U.S. citizen—they can’t apply for a green card inside the U.S. Instead, they must leave and attend a consular interview abroad, which can trigger 3-year or 10-year bars from returning.
PIP changes that.
By giving the applicant a “paroled” status, USCIS treats the person as if they had made a lawful entry, which satisfies a key requirement under INA §245(a) for adjusting status to lawful permanent resident (green card holder).
Applicants must submit:
For instructions, see the official USCIS guide:
USCIS Brochure on Immigration Options for Military Families (PDF)
Once parole is approved:
And they can do all of this without leaving the U.S., avoiding the risk of triggering re-entry bars.
If your spouse has past arrests, deportation orders, or immigration violations, their case is more complex.
Certain crimes can:
Always consult with an immigration attorney before filing anything if your spouse has:
📘 Grounds of Inadmissibility and Waivers (ILRC)
In June 2024, the Biden administration introduced the “Keeping Families Together” initiative, commonly known as the Parole in Place (PIP) program. This policy aimed to provide undocumented spouses and stepchildren of U.S. citizens with a pathway to legal residency without necessitating their departure from the United States. The program was designed to promote family unity by allowing eligible individuals to apply for parole, granting them temporary legal status and work authorization, thereby facilitating their journey toward obtaining a green card and eventual citizenship.
The PIP program targeted undocumented individuals married to U.S. citizens who had been residing in the country for at least ten years as of June 17, 2024. Eligible applicants were required to demonstrate a legally valid marriage as of that date, continuous physical presence in the U.S., and the absence of disqualifying criminal convictions. Upon approval, beneficiaries would receive parole status for up to three years, during which they could apply for permanent residency. Additionally, they were eligible to request an Employment Authorization Document (EAD), allowing them to work legally in the country.
The U.S. Citizenship and Immigration Services (USCIS) began accepting applications for the PIP program on August 19, 2024. However, the program faced immediate legal opposition. On August 23, 2024, a coalition of 16 states, led by Texas, filed a lawsuit challenging the legality of the initiative. The plaintiffs argued that the administration had overstepped its authority by implementing the program without congressional approval, asserting that it effectively granted. The Keeping Families Together parole in place process opened applications on August 19, 2024, but processing has been halted due to legal challenges.
In response to the lawsuit, on August 27, 2024, U.S. District Judge J. Campbell Barker issued a temporary stay, halting the processing of PIP applications. This decision was based on concerns regarding the executive branch’s authority to enact such a program unilaterally.
The legal proceedings culminated on November 7, 2024, when Judge Barker delivered a final judgment declaring the PIP program unlawful. The court concluded that the administration lacked the statutory authority to implement the program, emphasizing that such significant immigration policy changes require legislative action from Congress. As a result, the PIP program was vacated, and USCIS ceased accepting and processing applications.
Following the court’s decision, USCIS announced that it would not adjudicate pending PIP applications and would cancel all related biometrics appointments. Applicants who had already submitted their paperwork were informed that their applications would not proceed, and any associated fees would be refunded
The termination of the PIP program had profound implications for many immigrant families. Approximately 500,000 undocumented spouses of U.S. citizens and around 50,000 undocumented stepchildren were estimated to have been eligible for the program. The program’s cancellation left these individuals without a clear pathway to legal residency, exacerbating fears of family separation and deportation.
Immigration advocates expressed deep disappointment over the court’s ruling, highlighting the emotional and psychological toll on mixed-status families. The uncertainty surrounding their legal status has led to increased anxiety and distress among affected individuals, many of whom have deep-rooted ties to their communities and have resided in the U.S. for decades
Undocumented Spouses Already Boost the U.S. Economy
The undocumented spouses who may benefit: For those preparing for the naturalization process, these essential practice questions and answers for the US citizenship test can be very helpful.
Parole in place would enable them to:
Quick note that green cards granted within the first two years of marriages are conditional green cards that will expire in 2 years. The couple would need to file for a removal of the condition in the 90 day window prior to the green card expiring.
If the initial green card is granted AFTER the 2 year anniversay of the marriage, then the green card issued is unconditional, good for 10 years, and can be renewed every 10 years.
If married to an American citizen, green card holders can apply for citizenship after they have had their green card for 3 years (everyone elese has to wait 5 years).
| Years Married at Approval | Type of Green Card | Validity |
| Less than 2 years | Conditional green card | For comprehensive legal assistance over the past 2 years, consider working with Herman Legal Group. |
| 2+ years | Permanent green card | 10 years |
If you receive a conditional green card, you must:
📘 USCIS: Removing Conditions on Green Card (Form I-751)
Section 245(i) of the LIFE Act allows some undocumented immigrants to apply for a green card without leaving the U.S., even if they entered without inspection.
Who Qualifies
What to Know
📘 USCIS Guide to Section 245(i) Adjustment
If you’ve fled persecution or fear harm in your home country, you may be able to apply for asylum—a legal status that can eventually lead to permanent residency and citizenship.
Eligibility
Steps to Apply
📘 Learn more about asylum and how to apply
The U visa offers protection and a path to a green card for undocumented immigrants who are victims of qualifying crimes and have helped law enforcement.
Who Qualifies
Key Benefits
Registry is a little-known but powerful path to permanent residency for undocumented immigrants who’ve lived in the U.S. for a very long time.
Who Qualifies
For more information on qualification criteria:
Note: There are current efforts in Congress to move the registry date forward, which could open eligibility to millions.
This is a form of deportation relief available only if you’re already in removal proceedings before an immigration judge.
To Qualify, You Must:
Only 4,000 green cards are available each year through this option, so demand is high.
📘EOIR Guide to Cancellation of Removal
USCIS scrutinizes all marriage green card applications. Be cautious:
Sponsoring an undocumented spouse often requires extensive evidence proving that the marriage is legitimate and not entered into solely for immigration purposes.
Fraud can result in permanent ineligibility for a green card. Marriage fraud is a felony punishable by up to 5 years in prison and $250,000 fine.
Can an undocumented immigrant get a green card through marriage to a U.S. citizen?
Yes, in many cases. U.S. citizens can petition for their undocumented spouses to become lawful permanent residents. However, eligibility depends heavily on how the undocumented spouse entered the U.S., whether they have immigration violations or criminal issues, and other factors. To adjust status, an undocumented spouse must generally demonstrate a legitimate marriage that wasn’t entered into for the purpose of avoiding immigration laws.
Does it matter how I entered the U.S.?
Yes. Lawful entry (e.g., with a visa or through parole) is crucial. If you entered with inspection, even if you overstayed your visa, you may apply for a green card (adjust status) inside the U.S. through Form I-485.
If you entered without inspection (unlawfully), you typically cannot adjust status in the U.S. unless an exception applies (e.g., Parole in Place or certain older petitions under INA 245(i)).
Can I get a green card if I entered illegally but married a U.S. citizen?
Maybe. Marrying a U.S. citizen doesn’t automatically forgive an illegal entry. You may need to leave the U.S. and apply at a consulate abroad. But this triggers a 3- or 10-year re-entry bar, which often requires applying for a waiver of unlawful presence using Form I-601A.
Can I apply for a green card without leaving the U.S.?
Only if:
Otherwise, you may be required to go through consular processing abroad.
What is INA §245(i) and how can it help?
INA 245(i) allows certain undocumented individuals to adjust status in the U.S., even if they entered illegally, if:
What if I’m married to a green card holder instead of a citizen?
You can still get a green card, but you may have to wait for a visa to become available, since green card holders are subject to visa backlogs. If you’re in the U.S. unlawfully, you likely cannot adjust status unless you’re protected under special provisions like 245(i).
Can I still get a green card if I have a deportation order?
Possibly, but it’s complicated. You may need to reopen your removal order through a motion to reopen. Waivers or prosecutorial discretion may be required. You should absolutely consult an immigration attorney.
What if I’m in immigration court proceedings?
You may be able to apply for adjustment of status with the immigration judge, if you’re eligible through marriage and visa status. But timing and legal strategy are key—speak to an attorney.
What happens if I leave the U.S. to apply from abroad?
If you’ve been unlawfully present for more than 180 days and then leave, you may trigger:
You may be eligible to apply for a provisional waiver (Form I-601A) before leaving, which minimizes the time spent outside the U.S.
What is a Form I-601A waiver?
This is a provisional unlawful presence waiver for spouses of U.S. citizens or green card holders. It helps you apply for a green card through consular processing by forgiving unlawful presence before you leave the country, provided you show that your spouse would suffer extreme hardship without you.
Can DACA recipients apply for a green card through marriage?
Yes, but it depends. If you:
Can Temporary Protected Status (TPS) holders adjust through marriage?
Sometimes. If you entered the U.S. lawfully, or if your circuit court (like the 6th or 9th Circuit) treats TPS as an “admission,” you might be able to adjust inside the U.S. Check current case law and location-based policy.
Can a criminal record stop me from getting a green card through marriage?
Yes. Certain criminal convictions—especially involving drugs, fraud, domestic violence, or crimes of moral turpitude—may make you inadmissible. In some cases, you may be eligible for a waiver, but it depends on the specific conviction and circumstances.
Does marriage automatically stop deportation?
No. Marriage to a U.S. citizen does not automatically protect you from detention or deportation. You must apply for relief like adjustment of status or deferred action, and possibly request a stay of removal.
Will immigration believe my marriage is real?
USCIS examines every marriage-based petition closely for fraud. You must prove your marriage is bona fide (real)—with documents, shared finances, housing, and more. You’ll also undergo an interview.
Can I still be denied even if my marriage is real?
Yes. Even a real marriage can be denied if you’re inadmissible, have criminal issues, or lack required documentation. You may need to file for waivers or submit additional evidence.
Do I need an immigration lawyer?
It’s strongly recommended to read about the registration fee for the Diversity Green Card Lottery—especially if:
Marriage-based green cards are complex for undocumented individuals. A lawyer can help you avoid serious mistakes and increase your chances of success.
Can I get a work permit if I have DACA, Parole in Place, or other protected status?
Yes. Certain protections, such as DACA (Deferred Action for Childhood Arrivals) or Parole in Place (PIP), may allow recipients to apply for work permits while their status is being resolved. This means you could receive legal work authorization during your protected period, even if you are not yet eligible for a green card. Always check the specific requirements for your status and consult an immigration attorney if you have questions.
If you’re considering sponsoring your undocumented spouse, start by:
It’s absolutely possible to marry an undocumented immigrant in the U.S., and in many cases, that marriage can lead to legal status. But the process is full of legal twists that depend on your spouse’s immigration history, your own citizenship status, and whether you qualify for waivers.
For the best outcome:
You can sponsor your undocumented spouse—but the path depends heavily on your legal status, your spouse’s history, and how they entered the U.S.
In high-stakes or uncertain cases, speaking with an immigration attorney is essential. Legal mistakes could lead to separation, deportation, or a lifetime bar.
Options worth considering:
If you’re a U.S. citizen or green card holder and your spouse is undocumented—whether they overstayed a visa or entered without inspection—getting a green card is possible, but it’s not automatic. Mistakes can lead to delays, denials, or even deportation. That’s why you should speak with a trusted immigration attorney before filing anything.
Here’s why Herman Legal Group is the right place to start:
Don’t guess your way through immigration. A single mistake can cost you years.
Schedule a confidential consultation today: lawfirm4immigrants.com/contact if you have questions about sponsorhip of an undocumented spouse.
Or call 1-800-808-4013
Your family’s future is worth a smart, strong plan—and Herman Legal Group can help you build it.
Additional Resources
Updated April 2025
If your company is considering sponsoring a foreign national for U.S. permanent residence, you’ll likely need to go through the PERM Labor Certification process—the first and one of the most technical steps in employment-based green card sponsorship for EB-2 and EB-3 categories.
This guide explains what PERM is, how much it costs (including legal and filing fees), who pays, how long it takes, and why hiring an experienced attorney is a smart investment. You’ll also learn how the Herman Legal Group can help.
PERM (Program Electronic Review Management) is the U.S. Department of Labor’s (DOL) online system for employers to request labor certification for foreign workers. The certification confirms that:
No qualified U.S. workers are available for the job.
The hiring will not negatively impact wages or working conditions for U.S. workers.
PERM is the gateway to the green card process—required before employers can file an I-140 immigrant petition with USCIS.
For more details, visit the DOL’s PERM Overview.
PERM is the first of three main steps in most EB-2 and EB-3 green card cases.
|
Step |
Description |
|
1. PERM Labor Certification |
Test of the labor market through advertisements and filings with the U.S. Department of Labor. |
|
2. I-140 Immigrant Petition |
Filed with USCIS to prove eligibility and employer’s intent to hire. |
|
3. I-485 Adjustment of Status (or Consular Processing) |
Final step to get the green card if already in the U.S. (I-485) or through a U.S. consulate abroad. |
Federal law requires that the employer pays all costs associated with PERM labor certification:
Attorney fees for the PERM portion
Recruitment and advertisement costs
Prevailing wage determinations
The employee cannot legally pay these fees.
After PERM is approved, the employee or employer may pay for immigration petition filings (e.g., I-140, I-485), depending on company policy.
At Herman Legal Group, we offer flat-fee packages that keep your costs predictable.
|
Service |
Flat Fee |
Who Pays |
|
PERM Labor Certification |
$5,000 to $7500 |
Employer (corporate check only) |
|
I-140 Immigrant Petition |
$3,500 to $5000 |
Employer |
|
I-485, EAD, and Advance Parole |
$3500 to $5000 (primary applicant) / $2,000 (per dependent) |
Employee or Employer |
Note: These fees include consultations, documentation prep, and DOL audit readiness. Additional fees are charged for DOL Audits, RFEs, and NOID.
Advertising fees are not included in above costs. Advertising fees typically cost between $1,000 and $3,000.
For a consultation, visit Herman Legal Group or call for personalized advice.
|
Form |
Fee (as of 2025) |
Who Pays |
|
I-140 Petition |
$715 |
Employer |
|
I-485 (AOS) |
$1,440 (adult), $950 (child under 14) |
Employee or employer |
|
I-765 (EAD) |
$260 |
Employee |
|
I-131 (Travel Document) |
$630 |
Employee |
Use the USCIS Fee Calculator to confirm the most up-to-date rates.
Complex Cases: Additional research, multiple employers, or unusual job requirements.
RFEs: Responding to a Request for Evidence from USCIS increases workload and may add to legal fees.
Audits: DOL audits of PERM cases can trigger extra expert letter requirements or attorney time.
Employer Registers with DOL
Prevailing Wage Request Submitted
Employer Runs Job Ads and Recruitment Campaign
Recruitment Report Prepared and Retained
PERM Form ETA-9089 Submitted
DOL Approves (or Audits) the Case
Employer Files I-140 with USCIS
Employee Adjusts Status (I-485) or Consular Processes Abroad
The prevailing wage is the average wage paid to similarly employed workers in the geographic area.
To proceed with PERM:
Employers must pay the prevailing wage or prove financial ability to do so.
Large companies (100+ employees) must often submit a CFO letter confirming financial capability.
You can search estimated prevailing wages at the FLC Data Center.
Yes. PERM is the modern electronic system for filing labor certification applications. It’s the required method since March 28, 2005.
Employers must:
Conduct good-faith recruitment
Retain documents for 5 years (for possible audits)
Offer a bona fide, full-time job
Show the position meets normal duties and wage standards
Here is a clearer, more detailed look at what employers can expect to pay.
While hiring an immigration attorney is optional, it’s strongly recommended due to the complexity of PERM regulations and the risk of denial if even small mistakes are made.
Estimated Range: $5,000 – $7500
What’s Included:
Drafting and submitting the ETA-9089
Preparing recruitment steps
Compliance review
Advising on timelines and documentation
Note: Employers are required by law to pay attorney fees related to PERM labor certification. The employee cannot pay these.
Explore American Immigration Lawyers Association (AILA) to find licensed attorneys.
DOL requires a specific recruitment process for all PERM cases, which includes:
Two Sunday newspaper ads in a major paper of general circulation in the area of employment
A 30-day job order posted with the state workforce agency
Additional advertisements (for professional positions, at least three more methods like websites, job fairs, or trade journals)
Typical Costs:
|
Ad Type |
Estimated Cost |
|
Sunday Newspaper Ads (x2) |
$800 – $1,500 total |
|
State Job Posting |
Usually Free |
|
Additional Ad Methods |
$300 – $1,000 |
Costs vary by:
Location of job
Size and color of the ad
Circulation of the publication
Placement deadlines
Employers must maintain evidence of all ads and recruitment efforts for 5 years, in case of an audit.
Once the PERM is certified, the employer files Form I-140 (Immigrant Petition for Alien Worker) with U.S. Citizenship and Immigration Services (USCIS).
Form I-140 Filing Fee: $715
Optional Premium Processing: $2,805 (for 15-day processing)
In addition to core legal and recruitment costs, employers may also face:
|
Optional Cost |
Estimated Range |
Purpose |
|
Courier/FedEx Services |
$100 – $400 |
Secure, trackable shipping of documents |
|
Credential Evaluation |
$150 – $295 |
Required if the beneficiary holds foreign degrees |
|
Expert Opinion Letters (audit) |
$300 – $500 |
Supports the case if the DOL audits the job description |
|
Translation Services |
Varies |
Required if documents are in a non-English language |
Keep in mind that government audits and RFEs (Requests for Evidence) may increase costs depending on the level of legal response required
The PERM timeline depends on several factors, including prevailing wage determinations and recruitment activities.
Estimated Timeline:
Prevailing Wage Determination: 6-8 months
Recruitment Period: 2–3 months
PERM Form 9089 Processing: 10-12 months
If Audited: Add 6–8 additional months
Total Time (Without Audit): 24 months
Total Time (With Audit): Up to 32 months
View real-time processing updates at the DOL’s Flag Portal.
While it’s possible to file PERM without legal representation, it’s not recommended due to:
Strict legal requirements
Complex documentation
Unforgiving deadlines
Risk of audits and denial
With a flat-fee immigration attorney, you gain:
Peace of mind and legal compliance
Audit readiness and documentation support
Clear timelines and guidance through each stage
When hiring a lawyer, consider:
1. Experience in Labor Certification:
Not all immigration lawyers handle PERM cases. Choose someone familiar with both DOL and USCIS processes.
2. Transparent Fees:
Look for flat fees with no hidden costs.
3. Strong Communication:
Does the lawyer explain timelines, expectations, and risks clearly?
4. Reputation and Credentials:
Check client reviews and confirm bar membership. You can verify at your state bar website.
Start early: PERM advertising and recruitment take time. The full process can stretch 24 or more months.
Budget conservatively: Build in an extra 10–15% buffer in case of audits or RFEs.
Coordinate closely: Ensure employer and attorney stay aligned, especially on deadlines and job postings.
Track expiration dates: Ensure H-1B or other status won’t expire mid-process.
Case-Specific: Fees vary based on individual situations, family size, and whether audits or additional recruitment steps are triggered.
Stay in Touch: HR and employees should work closely with their lawyers throughout the process.
What is the total cost of the PERM labor certification process?
The total cost varies depending on case complexity, attorney fees, and advertising expenses. Employers typically spend between $5,000 to $10,000 for the PERM stage alone. This includes attorney fees, recruitment costs, and prevailing wage processing, even though the Department of Labor charges no filing fee for Form ETA-9089.
Is there a government filing fee for the PERM application (Form ETA-9089)?
No. There is no government filing fee for the PERM labor certification itself. However, other costs—like recruitment advertising and attorney fees—still apply.
Can the employee pay for any portion of the PERM process?
No. Under Department of Labor regulations, all costs associated with the PERM process must be paid by the employer, including attorney fees and recruitment costs. The employee may not reimburse the employer either directly or indirectly.
What are typical attorney fees for the PERM process?
Attorney fees for the PERM process generally range from $5,000 to $7500, depending on the complexity of the case and the firm’s fee structure. Many attorneys offer flat-fee packages covering prevailing wage guidance, recruitment review, PERM form preparation, and audit support.
What are recruitment and advertising costs, and how much do they typically cost?
The Department of Labor requires a good-faith recruitment effort, including:
Two Sunday newspaper ads
A 30-day job posting with the state workforce agency
Internal postings
Additional recruitment steps for professional occupations
Advertising costs range from $1,000 to $3,000, depending on the publication, size, location, and ad frequency.
Who pays for recruitment and advertising costs?
These costs must be paid by the employer. The employee cannot legally cover or reimburse any portion of the recruitment expenses.
Are there additional costs if the PERM case is audited by the DOL?
Yes. If your case is audited, additional legal fees may apply, particularly for preparing audit responses and expert opinion letters. Some law firms charge between $1500 and $2,500 in additional fees for audit handling.
Is there a filing fee for Form I-140 (Immigrant Petition for Alien Worker)?
Yes. As of 2025, the USCIS filing fee for Form I-140 is $715. An optional premium processing fee of $2,805 may be added for 15-calendar-day adjudication.
Can the employee pay the Form I-140 filing fee?
We recommend that the employer should pay all filing and attorney fees related to the I-140.
What is the premium processing fee for Form I-140, and who can pay it?
The premium processing fee is currently $2,805. Either the employer or the employee can pay for premium processing. It is not mandatory and simply accelerates USCIS processing time.
What is the cost of adjusting status in the U.S. via Form I-485?
As of 2025, the USCIS filing fee for Form I-485 is:
$1,440 for applicants age 14 and older
$950 for applicants under age 14 filing with a parent
Additional related fees include:
Form I-765 (EAD): $260
Form I-131 (Advance Parole): $630
Who pays for the Form I-485 and related fees?
The employee or applicant typically pays the Form I-485 and related application fees (I-765, I-131), though some employers choose to cover them as part of their benefits or immigration sponsorship policy.
Is there a difference in cost for consular processing instead of adjustment of status?
Yes. If an applicant processes the green card at a U.S. consulate abroad (consular processing), fees include:
Form I-140 filing fee: $715
DS-260 immigrant visa fee: $325
Affidavit of Support fee (Form I-864): $120 (if required)
Medical exam: ~$200–$500 (varies by location)
These costs are generally borne by the employee/applicant, unless the employer agrees to cover them.
Can employers pay for the Form I-485 and consular processing fees?
Yes. Employers may pay these fees, although they are not required to by law. The employee may also pay them.
Are there costs for education or degree evaluation during PERM or I-140 stages?
Yes. If the foreign national’s degree is from a non-U.S. institution, a credential evaluation may be required, which usually costs between $150 and $300. This cost may be paid by either party, unless specifically related to PERM, in which case the employer must pay.
Are translation and document certification fees covered by the employer or employee?
Generally, these are considered part of the employee’s personal documentation and may be paid by the employee unless used solely in support of the PERM filing, in which case the employer should cover them.
Is a medical exam required, and who pays for it?
Yes. A medical exam is required for Form I-485 or consular processing. The employee/applicant pays for the medical exam, which typically costs $200 to $500, depending on the provider and location.
What happens if the PERM or I-140 is denied—are the fees refundable?
No. USCIS and DOL filing fees are non-refundable, even if the case is denied. Likewise, most attorneys do not refund flat fees once work has begun, though some offer partial refunds or credits depending on the stage of the case.
Can employees reimburse the employer for PERM-related costs after the fact?
No. Under DOL regulations, employers may not seek reimbursement from employees—directly or indirectly—for any PERM-related expenses, including attorney or recruitment costs.
Are PERM-related costs tax-deductible for the employer?
Possibly. Some employers may treat immigration-related legal and recruitment expenses as business expenses for tax purposes. Employers should consult their tax advisor for proper treatment.
What is the cost difference between hiring a solo attorney vs. a large law firm?
Solo attorneys may charge less—starting at $3,000—while larger or nationally recognized firms may charge between $5,000 and $10,000 for PERM and I-140 filings. Service level, audit preparedness, and communication practices often vary.
Does hiring an attorney guarantee approval of the PERM or I-140?
No. While an experienced attorney significantly improves your chances of success and compliance, no outcome can be guaranteed. Success depends on job qualifications, documentation, and labor market test results.
Is it better to use flat-fee or hourly-fee immigration attorneys?
Flat-fee arrangements offer predictability and are preferred for PERM and green card filings. Hourly billing may make sense for unusual or highly complex cases with uncertain scope.
Can multiple foreign workers be sponsored for the same position using the same PERM application?
No. Each PERM labor certification must be position- and person-specific. You must file a separate PERM and I-140 for each beneficiary, even if they are applying for similar roles.
We’ve helped hundreds of employers and skilled workers navigate PERM and green card processes with:
Over 30 years of immigration experience
Multilingual legal team
Award-winning service and reputation
Nationwide representation
Whether you need help with job descriptions, prevailing wage requests, or complex audits, we’ll walk you through every step with precision and care.
Contact Herman Legal Group Today
We offer free consultations to evaluate your case and quote a flat legal fee.
Website: lawfirm4immigrants.com
Phone: Contact Us
Languages: English, Spanish, Chinese, Russian, Arabic, and more
Immigration Guides | Updated 2025
If you’re a U.S. citizen planning to bring your foreign fiancé(e) to the United States on a K-1 visa, the first step is filing Form I-129F, Petition for Alien Fiancé(e). This form starts the process and is filed with U.S. Citizenship and Immigration Services (USCIS). To be approved, you must show proof that your relationship is real and that both partners intend to marry within 90 days of your fiancé(e)’s arrival.
We’ve created a detailed, updated checklist—plus added context, new tips, and helpful visuals—to make sure your I-129F petition is complete and well-prepared.
When reviewing your Form I-129F, USCIS officers are checking for:
Let’s break this down with a complete, easy-to-follow checklist.
The K-1 visa application involves three main stages:
Below are expanded checklists and explanations for each stage.
Before filing Form I-129F, start gathering evidence of your relationship. This is essential for convincing U.S. immigration officials that your relationship is real and not just for immigration purposes.
This step begins the formal petition process. The U.S. citizen must file Form I-129F with U.S. Citizenship and Immigration Services (USCIS).
1. Proof of U.S. Citizenship (for the petitioner)
Provide one of the following:
Resource: How to prove U.S. citizenship – USCIS
2. Proof Both Are Legally Free to Marry
If either of you was previously married, you must prove that the marriage legally ended.
Submit:
3. Proof You’ve Met in Person (Past 2 Years)
USCIS wants proof that you and your fiancé(e) have met at least once in person within the last two years.
Examples of evidence:
Waivers: You may request a waiver if:
If claiming a waiver, include:
See In-Person Meeting Waiver Guidance.
4. Proof of Intent to Marry
You and your fiancé(e) must marry within 90 days of entering the U.S. Submit documents like:
Pro Tip: A short, signed statement from each partner with a proposed wedding date works well.
Intent to Marry Statement Template
5. Proof of Bona Fides of Romantic Relationship
While not required, adding strong relationship evidence can help reduce requests for more information (RFEs):
6. Passport-Style Photos
Include one color passport-style photo (2×2 inches) of each person:
7. Additional Evidence
8. Completed Form
9. I-129F Filing Fee
10.Certified Translations
Any document not in English must be translated. Include:
11.Form G-28: Attorney Representation
If you’re working with an immigration lawyer, submit Form G-28 so USCIS can contact your representative directly.
Tip: If a required document isn’t available, provide a statement from the civil authority plus secondary evidence (school records, religious documents, affidavits).
See: USCIS Form I-129F Instructions, Page 10
Binder clips or organized folders instead of staples
|
Step |
Estimated Duration |
| Gather documents | 1–2 months |
| I-129F processing (USCIS) | 6–12 months |
| DS-160 & visa interview | 1–2 months |
| Entry to the U.S. | Within 6 months of visa issuance |
| Marriage in U.S. | Within 90 days of arrival |
| Green card application (I-485) | Begins after marriage |
|
USCIS Service Center |
Avg. Time (Months) |
| California | 16 months |
| Nebraska | 5 months |
| Potomac | 19 months |
| Texas | 12.5 months |
| Vermont | 7.5 months |
Check USCIS case status online:
https://egov.uscis.gov/casestatus
International Marriage Broker Regulation Act (IMBRA)
The IMBRA mandates background checks on U.S. citizen petitioners and requires that information about any criminal convictions be disclosed to the foreign-citizen fiancé(e). It also imposes limits on the number of K-1 petitions a U.S. citizen can file and regulates the activities of international marriage brokers.
If the U.S. petitioner has been convicted of certain crimes—including domestic violence, sexual assault, child abuse, or drug charges—USCIS may require:
Important: If you have any criminal history, speak to an immigration attorney before
USCIS places limits on repeat I-129F filings:
Tip: If you have a criminal record or previous filings, consult with an immigration attorney before proceeding.
Once USCIS approves your I-129F, your case is transferred to the National Visa Center and then to the U.S. Embassy or Consulate abroad. The foreign fiancé must file Form DS-160 (Online Nonimmigrant Visa Application) and attend an interview.
Vaccination Requirements
While vaccinations are not required for K visa issuance, they are necessary when adjusting status to a lawful permanent resident after marriage. Applicants are encouraged to fulfill these vaccination requirements during the medical examination
Joint Documents (from both fiancés):
Visa Fee
Every embassy may have slightly different procedures or document requirements. Always:
The U.S. citizen must show they can financially support the fiancé once they arrive in the U.S.
I-134 Supporting Documents Checklist
|
Document Type |
Requirements |
| Bank Letter | Date account opened, past year’s deposits, current balance |
| Proof of Employment | Employer letter with salary, job title, length of employment |
| Federal Tax Return | Most recent 1040 form or transcript |
| Proof of Bonds (if applicable) | Serial numbers, bond denominations, ownership info |
Important: You must meet 100% of the Federal Poverty Guidelines for your household size.
See current poverty guidelines here
Once the DS-160 is complete and the U.S. embassy/consulate accepts the application, the fiancé must attend a visa interview.
Pro Tip: Bring both originals and photocopies to your interview. Keep everything organized in a labeled folder.
Locate your U.S. embassy or consulate
Once married in the U.S., the Thai spouse can apply for permanent residency by filing:
If approved, the Thai spouse receives a 2-year conditional green card (if the marriage is under 2 years old).
Make sure you’ve completed the form correctly before filing:
Pro Tip: Submitting an incomplete or unsigned form is a top reason for rejection. Double-check every page before mailing.
Part 1: Petitioner Information
Part 2: Beneficiary Information
Part 3: Criminal History of U.S. Citizen
Part 4: Biographic Information
Part 5–7: Signature, Interpreter, and Preparer Info
Part 8: Additional Info
Where to Send Form I-129F
Mail your full packet (Form + fee + documents) to the USCIS lockbox listed on the Direct Filing Addresses page.
GENERAL QUESTIONS ABOUT THE K-1 VISA
What is the purpose of the K-1 visa?
The K-1 visa allows a U.S. citizen to bring their foreign fiancé(e) to the United States so the couple can get married within 90 days of arrival.
How long does the K-1 visa process take from start to finish?
The average processing time is approximately 12–15 months, though it can vary depending on USCIS workload, embassy backlogs, or requests for additional evidence.
Can I file the I-129F if I haven’t met my fiancé(e) in person?
Generally no. U.S. immigration law requires that you and your fiancé(e) must have met in person at least once within the past two years, unless you qualify for an exemption due to cultural or religious customs or extreme hardship.
Can same-sex couples apply for a K-1 visa?
Yes. Same-sex couples are eligible for K-1 visas as long as all legal requirements are met.
I-129F PETITION FAQs
Who files Form I-129F?
Only the U.S. citizen partner files the I-129F petition with USCIS.
What are the most important supporting documents to include with Form I-129F?
Key documents include proof of U.S. citizenship, evidence of your relationship, photos of you and your fiancé(e), proof of meeting in person, prior divorce/death certificates (if applicable), passport photos, and a written intent to marry.
What kind of relationship evidence is strongest?
The best evidence is a combination of:
Is it okay if we don’t have many photos or receipts?
While it’s not mandatory to have a certain number of items, more documentation can strengthen your case. If you lack traditional evidence, consider written explanations, affidavits, or less common items like shared online accounts or postal records.
How many letters of intent to marry are required?
Both the U.S. citizen and the foreign fiancé(e) must each submit a signed and dated letter stating they intend to marry within 90 days of entry into the U.S.
Can we submit wedding plans or reservations with the I-129F?
Yes. These are helpful to prove your intent to marry. Include venue bookings, invitations, or vendor receipts if available.
Do I need a lawyer to file Form I-129F?
A lawyer is not required but can be helpful—especially if your case is complex or you anticipate issues like prior visa denials, criminal records, or unusual relationship circumstances.
What happens if USCIS sends a Request for Evidence (RFE)?
You must respond by the deadline listed, providing the requested documents. Failure to respond may result in denial.
DS-160 FORM FAQs
Who completes the DS-160 form?
The foreign fiancé(e) must complete the DS-160 form online once the I-129F petition is approved and the U.S. embassy schedules a visa interview.
When should the DS-160 be completed?
It must be completed before scheduling or attending the K-1 visa interview. You’ll need to bring the confirmation page to the interview.
Is the DS-160 form specific to the K-1 visa?
No. The DS-160 is used for multiple types of nonimmigrant visas. However, the information you enter will determine that you’re applying for a K-1 visa.
What documents are needed to complete the DS-160?
You’ll need your passport, your case number from the NVC or embassy, information about your travel and background, and details about your fiancé(e) in the U.S.
What if I make a mistake on my DS-160?
If you catch the mistake before submission, you can edit it. If you realize it after submission but before your interview, complete a new DS-160 and bring both confirmation pages to the interview.
Do I need to upload a photo to the DS-160?
Yes, the system may ask for a digital photo. However, the embassy still typically requires two printed passport-style photos at the interview.
Can I save and return to my DS-160 application later?
Yes, you can save your DS-160 application and return to it within 30 days using your application ID.
K-1 VISA INTERVIEW FAQs
What happens at the K-1 visa interview?
A consular officer will ask questions about your relationship, review your documents, and decide whether to issue the visa.
What questions are asked during the K-1 interview?
Typical questions include:
What happens if I don’t bring all the required documents to the interview?
The visa may be refused or delayed under 221(g), pending submission of the missing documents.
Can I bring a translator to the interview?
Most consulates allow it if you are not fluent in the interview language. Check the local embassy’s rules.
What if my fiancé(e) has children?
Each eligible child may apply for a K-2 visa. Include their information in the I-129F and DS-160, and prepare their documents for the interview.
FINANCIAL AND SUPPORT FAQs
What is the minimum income required to sponsor a fiancé(e)?
You must meet or exceed 100% of the Federal Poverty Guidelines. The amount depends on your household size.
What if I don’t meet the income requirement?
You may still file the I-129F, but the K-1 visa may be denied unless you show adequate assets or exceptional circumstances. You cannot use a joint sponsor with Form I-134, unlike other visa types.
Is Form I-134 legally binding?
It is not legally enforceable like Form I-864, but the consular officer uses it to assess whether the fiancé(e) is likely to become a public charge.
DOCUMENTATION FAQs
Do documents need to be translated?
Yes. Any document not in English must be translated, and the translator must certify that the translation is accurate and complete.
Should I send original documents to USCIS?
No. Send copies unless USCIS specifically requests originals.
Do I need to notarize my letters or declarations?
Not for USCIS. However, some embassies may prefer notarized documents for interviews or affidavits. Check with the local consulate.
Is a police certificate required for countries I visited briefly?
Only if you stayed in a country for 6 months or more (or if it’s your home country), and you were 16 years or older during the stay.
How recent must police certificates be?
Typically issued within 12 months of the interview date and must be valid at the time of submission.
LESS COMMON BUT IMPORTANT QUESTIONS
Can we get married before entering the U.S. on a K-1 visa?
No. The K-1 visa is only for foreign fiancé(e)s who intend to marry after entering the U.S. If you marry before entering, you must pursue a spousal visa instead (CR-1 or IR-1).
Can the foreign fiancé(e) work on a K-1 visa?
Yes, but they must apply for work authorization (Form I-765), which may take months to be approved. Alternatively, work authorization is automatically granted once the Adjustment of Status is filed and the EAD is approved.
What happens if we don’t marry within 90 days?
The foreign fiancé(e) must leave the U.S. or risk being out of status. There is no extension or renewal of the K-1 visa.
Can we get married outside the 90-day window and still adjust status?
No. Marrying after 90 days can disqualify the foreign partner from adjusting status through the K-1 path.
What happens if the K-1 visa is denied?
You may appeal or reapply. It’s important to understand the reason for denial before taking further action. Consulting an immigration attorney is highly recommended in this case.
Can we travel internationally while the K-1 is pending?
Yes, but the foreign fiancé(e) should not enter the U.S. until the K-1 visa is issued, unless under the supervision and advice of an experienced immigraiton lawyer. The U.S. petitioner may travel abroad freely.
Filing for a K-1 visa can be overwhelming. One missing document can delay or deny your petition. Herman Legal Group has over 30 years of experience in helping couples file successful fiancé visa petitions.
At Herman Legal Group, we’ve helped couples from over 50 countries navigate the K-1 visa process successfully. With over 25 years of immigration law experience, we know what USCIS looks for—and how to avoid delays and denials.
Our Services Include:
Losing a job while on an H-1B visa can be overwhelming — regardless if its through layoff, downsizing, termination, or resignation. Thankfully, U.S. immigration laws provide grace periods to help you transition without immediately falling out of status. Whether you’re laid off, resign, or face early termination, understanding your options is essential.
The United States Citizenship and Immigration Services (USCIS) plays a crucial role in determining eligibility for the 60-day grace period for H-1B visa holders.
This expanded guide breaks down everything you need to know about the 10-day, 60-day, along with legal strategies, employer options, and key actions you should take immediately.
The H-1B visa grace period is a 60-day window that begins the day after you are laid off, terminated, or voluntarily resign from your job.
During this time, you and your dependents on H-4 visas remain in valid nonimmigrant status, even though you’re no longer employed.
The grace period is up to 60 consecutive days or until your current I-94 expires, whichever comes first.
It only applies once per authorized validity period.
You are not allowed to work during this period unless a new H-1B petition is filed and approved.
Nonimmigrants can maintain nonimmigrant status solely during the 60-day grace period following the early cessation of employment, as long as they adhere to DHS regulations.
Official Source: 8 CFR 214.1(l)(2)
A grace period is the time you’re legally allowed to stay in the U.S. after your H-1B employment ends, giving you a chance to:
Find a new job
File a change of visa status
Prepare to leave the U.S. without accruing unlawful presence
Grace periods vary based on your situation:
10-Day Grace Period: Tied to visa start and end dates
60-Day Grace Period: Applies when employment ends prematurely
The 10-day grace period is commonly misunderstood. It does not apply if you’re laid off or resign early. Instead, it applies only:
Before starting a new H-1B job: You may enter the U.S. up to 10 days before your job officially begins (but cannot start working).
After visa validity ends: You have 10 days after your approved H-1B period ends to prepare for departure. Again, no work is allowed.
More on this fromUSCIS’s H-1B Guidelines.
If your H-1B job ends before the official end of your visa validity period (whether by layoff, resignation, or termination), the 60-day grace period is your lifeline.
Key facts:
Starts the day after your last day of employment
Allows time to find a new employer or file a change of status
You must act within 60 days to maintain lawful presence
Not automatic: DHS can deny or shorten it
This grace period also applies to other nonimmigrant work visas, including:
H-1B1 (Chile/Singapore)
L-1 (intra-company transferees)
O-1 (extraordinary ability)
E-3 (Australia)
TN (Canada and Mexico)
Important: The 60-day period is once per petition. If you used it once and returned to the same employer under the same petition, you don’t get it again.
No. H-1B holders should not travel internationally during the grace period. Leaving the U.S. ends the grace period, and you may not be able to return without a valid job offer and petition approval.
No separate application is needed. The grace period is automatically triggered when:
Your employment ends.
A new employer files an H-1B petition on your behalf during the 60-day window.
However, the new employer’s petition must include a clear explanation of the gap in employment and the reason for using the grace period.
Not everyone qualifies. USCIS may deny or shorten the grace period in cases where:
You quit without just cause, especially without documentation.
You engaged in unauthorized work or other violations.
You overstayed a previous visa or accrued unlawful presence.
➡ To avoid risks, consult an immigration attorney before resigning or making major changes.
Losing your job in the U.S. while on a work visa can be stressful. Many nonimmigrant workers assume they must leave immediately. But you likely have several legal options to stay—temporarily or even long-term.
If your employment ends—whether voluntarily or involuntarily—you may qualify to:
File a change of nonimmigrant status (like from H-1B to B-2 or F-1)
Apply for adjustment of status (if you qualify to become a green card holder)
Request a compelling circumstances Employment Authorization Document (EAD)
Be the beneficiary of a new employer’s petition (such as a new H-1B filing)
If one of these actions occurs within 60 days of your termination—or before your visa expires—you can stay in the U.S. legally beyond that grace period.
|
Action |
Deadline |
|
Last day of employment |
Day 0 |
|
Grace period ends |
Day 60 or I-94 expiry |
|
H-1B transfer must be filed by |
Day 60 |
|
Change of status must be filed by |
Day 60 |
|
Voluntary departure (if leaving) |
Day 60 |
You have up to 60 consecutive days (or until your I-94 expires, whichever is sooner) to take action after your employment ends.
This grace period applies to workers in the following visa categories:
E-1, E-2, E-3
H-1B, H-1B1
L-1
O-1
TN (NAFTA/USMCA workers)
See regulation 8 CFR 214.1(l)(2)
Before 2016, you had to leave the U.S. immediately upon job loss. Now, you get time to:
Find a new job and transfer your visa
Change your immigration status
File a green card application (if eligible)
Apply for special employment authorization
|
Question |
Answer |
|
When does it begin? |
The day after your last paid workday |
|
Do I need to apply? |
No formal application—just take one of the allowed actions within 60 days |
|
Can I use it if I quit? |
Yes, it applies whether you were fired or resigned |
|
Can I use it again later? |
Yes, once per employer petition period |
|
Can I work during it? |
No, unless authorized (e.g., new employer files H-1B petition) |
|
Can I travel during it? |
No. Leaving the U.S. ends the grace period |
|
Can my spouse keep working? |
Yes, if they have an EAD or are work-authorized by status (e.g., L-2 spouses) |
If you’re on H-1B status and find a new job, your new employer can file a non-frivolous H-1B petition.
Key Advantage: You can start working as soon as USCIS receives the petition—no need to wait for approval.
Certified Labor Condition Application (LCA) from the Department of Labor (takes ~7 days)
Form I-129 filed by your new employer
Learn more about H-1B Portability
You can apply to switch to another legal status, such as:
Dependent nonimmigrant status (e.g., H-4, L-2)
Visitor status (B-1 or B-2)
Student status (F-1)
Another work visa (TN, E-3, H-1B1)
Important Notes
File before the grace period or I-94 expires
You may stay while it’s pending
Do not work until the change is approved
Some changes may allow expedited or premium processing
Important: If you wait until Day 60 to file a transfer, USCIS may approve the petition but deny the status change, requiring you to leave and reenter the U.S.
The B-2 visa is a nonimmigrant visitor visa for tourism, personal travel, or medical treatment.
Purpose: For temporary visits like vacation, visiting family/friends, or receiving medical care.
Initial Stay: Typically up to 6 months.
Extension Possible: Yes, with timely filing of Form I-539 before your authorized stay expires.
USCIS I-539 Application to Extend/Change Status
Not Allowed:
Working in any capacity
Studying or attending classes full-time
Important: The B-2 is often used as a “bridge” status—not a long-term solution.
If you qualify for a green card (such as through family, marriage, EB-1, or EB-5), you may be able to file:
Form I-485: Adjustment of Status
Optionally, request a work permit (EAD) and travel permit (Advance Parole) while waiting
This can be filed concurrently with:
Self-petition under EB-1 (Extraordinary Ability)
EB-5 investor petition
Learn more about adjustment of status
This is a temporary work permit for those with an approved I-140 but no visa number available.
Have an approved I-140 employment-based immigrant petition
No green card visa number currently available
Facing compelling circumstances such as:
Serious illness
Employer retaliation
Family hardship
Risk of deportation
Duration: 1 year, renewable
Drawback: You no longer maintain your original nonimmigrant status
Apply for a Compelling Circumstances EAD
Switching to B-1 or B-2 can allow you to stay longer to:
Look for jobs
Attend interviews
But: You cannot start working in the U.S. on B-1/B-2.
If you find a job, the employer must:
File a petition for a work visa
Get approval before you can work
Change to B-1/B-2 Visitor Status
You can always choose to depart the U.S. voluntarily.
If You’re on H-1B or O-1:
Your former employer must pay reasonable return transportation costs to your last foreign residence
H-1B workers may return to the U.S. later to use any unused time left on their H-1B cap
Depart within 60 days to avoid unlawful presence
Re-enter later with a valid H-1B visa and new petition if approved abroad
You may qualify for expedited processing of your case under limited situations such as:
Severe financial loss
Humanitarian reasons
Emergencies
Government interests
How to Make an Expedite Request
Note: If premium processing is available (e.g., for I-129), expedite requests usually won’t be considered.
USCIS and DHS may deny or shorten the 60-day grace period based on:
Fraud or misrepresentation
Unauthorized employment
Accrued unlawful presence
Criminal charges
The United States Citizenship and Immigration Services (USCIS) may grant a grace period under certain conditions, detailing the implications for beneficiaries who resign from their jobs or find themselves facing employment termination. These immigration services are crucial for understanding the policies and procedures that affect H-1B and TN visa holders.
Be cautious: Accruing over 180 days of unlawful presence can trigger a 3-year reentry ban, and over 365 days results in a 10-year ban.
No. International travel during the 60-day grace period will terminate your status. You won’t be allowed to reenter unless you:
Obtain a new visa stamp
Have a valid, approved petition with a new employer
If your spouse is on H-4 status:
Their status remains valid as long as your H-1B status is valid (including the grace period)
If your spouse has a valid EAD, they can continue working during the 60-day period
File Form I-765 for work authorization if your spouse qualifies
More info: H-4 EAD Guide
1. What is the 60-day grace period?
The 60-day grace period allows certain nonimmigrant workers who lose their jobs to remain in the U.S. for up to 60 consecutive calendar days without being considered out of status, giving them time to find new employment, change status, or make other arrangements.
2. Which visa categories are eligible for the 60-day grace period?
Eligible visa classifications include:
H-1B (Specialty Occupation)
H-1B1 (Chile/Singapore Free Trade)
O-1 (Individuals with Extraordinary Ability or Achievement)
L-1 (Intra-Company Transferee)
E-1, E-2, E-3 (Treaty Traders, Investors, and Specialty Occupation Professionals from Australia)
TN (NAFTA/USMCA Professionals)
3. Does the grace period automatically start after termination or resignation?
Yes. The 60-day grace period begins the calendar day after your last day of employment (regardless of whether you resigned or were terminated).
4. Do weekends and holidays count in the 60-day grace period?
Yes. The grace period is 60 consecutive calendar days, including weekends and holidays.
5. Can I work during the 60-day grace period?
No. You are not authorized to work during the grace period unless a new employer files a petition (e.g., H-1B transfer) and it is received by USCIS within the 60 days, allowing you to begin working based on portability provisions.
6. Can I leave and re-enter the U.S. during the grace period?
Generally, no. If you leave the U.S. during the grace period and try to re-enter, you may face difficulty unless you have a valid visa stamp and new approved petition. Re-entry without employment may be considered a violation of your visa intent.
7. Can I transfer my H-1B or other work visa to a new employer during the 60-day period?
Yes, if the new employer files a new petition and USCIS receives it within the grace period, you can begin working upon receipt if you’re on an H-1B.
8. Can I file for a change of status (e.g., B-2 tourist, F-1 student) during the grace period?
Yes. You may apply to change status during the grace period, but your application must be received by USCIS before the 60th day. Approval is not guaranteed, and timing is critical.
9. What happens if I don’t take action within the 60 days?
If you do not secure new employment, change status, or leave the U.S. within 60 days (or the expiration of your I-94, whichever is earlier), you begin accruing unlawful presence, which can lead to future immigration penalties.
10. Is the grace period shorter than 60 days in some cases?
Yes. If your I-94 expires before the 60-day period ends, your grace period ends on the I-94 expiration date. The grace period never extends your authorized stay.
11. Can I start a business or work on my own startup during the grace period?
You can explore starting a business, but you cannot work for the business unless you change to an appropriate status (e.g., file for H-1B with your own startup as the employer, with proper structure).
12. Can I file multiple petitions or applications during the grace period?
Yes. You can have multiple petitions or change of status applications filed by different employers. The first petition approved will determine your next lawful status.
13. Can I file a change of status to dependent status (e.g., H-4, L-2)?
Yes, if you have a qualifying spouse on a valid visa. USCIS must receive your change of status application within the 60-day window.
14. Does severance pay affect the start of the grace period?
No. The grace period starts after your last day of active employment, not the last day you receive severance or remain on payroll.
15. What documents do I need to show I’m within the 60-day grace period?
Keep:
Termination/resignation letter
Last pay stubs
I-797 approval notice
I-94 record These can help demonstrate eligibility for the grace period when filing a new petition or application.
16. Is there a formal application required to use the 60-day grace period?
No. The grace period is automatic, but USCIS will consider whether you meet the requirements only when you file a petition or application during or after that period.
17. Can the 60-day grace period be extended or paused?
No. The grace period is fixed and cannot be extended, paused, or reinstated.
18. Can USCIS deny my new petition even if it was filed during the grace period?
Yes. USCIS reviews the entire record, including whether you maintained status. Filing during the grace period does not guarantee approval.
19. Does the 60-day grace period apply more than once per visa validity period?
No. USCIS guidance states the grace period can be used only once per authorized validity period (e.g., per H-1B approval period).
20. Can I travel internationally during the grace period and re-enter to start work with a new employer?
Possibly, but it’s risky. You would need a valid visa and a new I-797 approval from the new employer. CBP officers may deny entry if they suspect you are not maintaining status.
21. What if I’m terminated while on H-1B and my spouse is on H-4 EAD? Can I switch to H-4?
Yes, you may apply to change to H-4 dependent status. You must file before the end of the grace period. However, you cannot work until H-4 is approved and you also receive H-4 EAD approval, if applicable.
22. Can I file for adjustment of status (green card) during the grace period?
You can file if you’re eligible and the timing works (e.g., PERM and I-140 already approved with current priority date), but it is uncommon. Most adjustment applications follow ongoing lawful employment or other statuses.
23. What if I am on STEM OPT and my H-1B is revoked before October 1? Do I get a grace period?
No. The 60-day grace period applies only to certain nonimmigrant work visas. F-1 STEM OPT holders have different rules and may not get a full 60-day grace period if H-1B is revoked before the change of status takes effect.
24. If I file a change of status to B-2 but haven’t heard back after 60 days, am I still legal?
Yes, if the change of status application was timely filed and is pending, you are generally allowed to remain in the U.S. until USCIS makes a decision.
25. Can I use premium processing to expedite a change of status or H-1B transfer during the grace period?
Yes, if the visa type is eligible for premium processing, you may use it to get faster decisions.
26. Can I apply for unemployment benefits during the grace period?
It depends on your state laws and eligibility rules. Most visa holders, including H-1B, are not eligible for unemployment insurance, as it typically requires permanent work authorization.
27. What if I am pregnant or sick? Can I apply for a humanitarian-based extension?
In rare cases, you might apply for discretionary relief like a humanitarian extension or change of status, but approval is uncertain. Consult with an immigration attorney.
28. How do I check the exact date my grace period ends?
Count 60 calendar days from your last day of work, or until your I-94 expiration, whichever comes first. Tools like online date calculators can help you track it accurately.
29. Will staying beyond the grace period affect future visa or green card applications?
Yes. Overstaying can lead to unlawful presence, visa denials, or difficulties obtaining future U.S. immigration benefits. Always act before the grace period ends.
30. Should I consult an immigration attorney during my grace period?
Yes. Because options vary based on your visa, goals, and timing, an immigration attorney can help you make the best use of the 60-day window.
Can I use the grace period if I quit? Yes. The rule does not distinguish between layoff and resignation. However, you may be subject to DHS discretion, so it’s best to consult with an attorney.
Can I use the 60-day period more than once? Only once per visa petition. If you switch employers and get a new petition, you’re eligible again.
When can I start working with a new employer? After the H-1B transfer petition is filed and USCIS issues a receipt (Form I-797).
What if I don’t find a new job in time? You must leave the U.S. before the 60-day period ends to avoid falling out of status.
Can I apply for a tourist visa (B-2) while on H-1B? Yes, you can file for a change of status to B-2 using Form I-539 during the grace period.
31. What are the restrictions on B-1 and B-2 nonimmigrant visitors in the U.S.?
B-1 and B-2 nonimmigrant visitors are explicitly prohibited from engaging in any type of skilled or unskilled labor. These visitors are allowed to participate in activities such as tourism, social visits, and certain business activities, but they cannot work in the U.S. in any capacity. This restriction highlights the legal limitations on employment options available to B-1 and B-2 visa holders.
Act quickly—within 60 days or before your visa expires
Don’t start a new job without proper authorization
Use premium processing when available to speed things up
Talk to an immigration attorney to plan your best move
Losing a job while on a work visa is more than just a career setback—it’s a legal and life-altering event. The 60-day grace period may seem like a cushion, but in truth, it’s a narrow window with high stakes. Every day counts. Whether you’re exploring a change of employer, adjusting your status, or considering departure, what you do next can shape your future in the U.S.
That’s why you shouldn’t navigate this alone.
Grace period issues are complex and fact-specific. If you’re facing job loss, schedule a consultation with an immigration expert to discuss options such as:
Employer transfer
Adjustment of status
Grace period challenges
At the Herman Legal Group, we understand the anxiety, the deadlines, and the dreams on the line. With over 30 years of experience helping immigrants in crisis and transition, we provide not just legal solutions, but clarity, strategy, and peace of mind.
We’ve helped thousands of professionals like you preserve their status, pivot to new opportunities, or plan for a successful return—on their terms. If your career or immigration path is in jeopardy, let’s create a plan that gives you options, not regrets.
The clock is ticking. Let’s talk—before it runs out.
Contact the Herman Legal Group today. Call 216-696-6170, or schedule your consult online.
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Helpful Resources
More Resources and Tools
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Resource |
Link |
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USCIS Case Status Tracker |
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Form I-129, Petition for a Nonimmigrant Worker |
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Form I-539, Change of Status |
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Form I-765, Employment Authorization |
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USCIS Policy Manual (Portability) |
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Department of Labor LCA Tool |
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