Many international students come to the United States every year through an F-1 nonimmigrant visa, fell in love with U.S. citizens, and want to start a family and live in the United States. This visa is granted only for the duration of the student program with additional months to gain work experience. After its expiration, you will need to return to your home country.
But, if you are an international student holding an F-1 student status and want to get married or you recently married a U.S. citizen or a green card holder (a permanent resident), you can learn how to apply for a marriage-based green card and stay and live with your spouse in the United States.
The transition process from one visa to another, as in this case from an F-1 student visa to an immigrant visa (a green card), is officially known as “adjustment of status.”
Before applying or before you adjust status, it’s essential to be aware of eligibility requirements and any potential issues you may face in the process.
What is the Right Time to Adjust F-1 Visa to a Marriage-Based Green Card?
Filing for adjustment of status at an inappropriate time is a common mistake that many international students make. Applying for a status adjustment shortly after entering the United States can be considered too early. If you do so, the government officials may subject your intentions to suspicion.
Similarly, if you file when you are out of status will also affect your approval chances. Therefore, it’s essential first to understand what U.S. immigration law governs, focusing on the 90-day rule.
How Can the 90-Day Rule Affect Change of Status from F-1 to Marriage-Based Green Card Application?
Bear in mind that entering the United States on an F-1 visa with the apparent intention to get a permanent residency through marriage is considered a violation of an F-1 visa. If an alien file for a green card within 90 days of entering the United States on a temporary visa, the same applies- the U.S. officials will deem that the alien’s intentions were only for immigration purposes.
The 90-Day Rule
When evaluating these applications, immigration officers apply a particular guideline called the “90-day rule”. It helps them determine whether a foreign spouse seeking a green card was truthful about the intention of coming to the United States and had no plan of returning to the home country before your F-1 visa expired.
How to Calculate 90 days?
To find the date of your most recent entry to the United States, you can check your I-94 travel record (Form I-94 Arrival/Departure Record). On the date stated in this form, add 90 days.
Bear in mind that if your first entry to the United States was on a B-2 visitor (tourist) visa, and then you returned to the United States with an F-1 visa, the 90-day rule would apply only to the last date you entered the United States, in this case with the F-1 visa.
On the other side, if you entered with a B-2 visa and applied for an F-1 student visa and got the approval while you were still in the United States, and before your B-2 visa, the 90-day rule would apply to the date you entered with a B-2 visa.
Transition From a Students Visa to a Marriage-Based Green Card
The U.S. immigration law gives two different options for a foreign national with F-1 status (a student visa)to acquire a green card through marriage:
- Be married to a U.S. citizen
- Be married to a U.S. green card holder (a lawful permanent resident)
You and your spouse need to follow slight differences in application processes for these cases, so the following parts of these articles will apply to you depending on your situation and the category you belong to.
The common thing is that the sponsoring spouse must file a petition with the USCIS to prove the eligibility to be your sponsor. There are specific requirements for a sponsoring spouse and a spouse seeking a green card that you have to meet.
If You Are Married to a U.S. Citizen
When the sponsoring spouse is a U.S. citizen, to complete the status change from an F-1 to a marriage-based green card, the spouse has to file:
I-130, Petition for Alien Relative
The sponsoring spouse has to initiate the process by filing an I-130 petition with the U.S. Citizenship and Immigration Services USCIS. The purpose of this form is to establish the marital relationship between you and your spouse seeking a green card. You have to fill it out appropriately and submit it with all the required documents. The fundamental condition of marriage-based green cards is to prove the authenticity of your relationship or that your marriage is bona fide. Since marriage fraud is a common thing in the United States, the government scrutinizes this visa category more than others.
I-485, Application to Register Permanent Residence or Adjust Status
A foreign national spouse has to file the I-485 form to adjust status from the F-1 visa to a marriage-based green card. Since you are a spouse of a U.S. citizen, you can choose the option and file both the I-130 and I-485 concurrently.
An immigrant visa is always available to a U.S. citizen’s immediate relatives, but you will need to wait for the USCIS to approve your petition. Once the immigration officer determines that your relationship is real and convinced that you meet the eligibility criteria for a green card, they will approve your application. The processing time for marriage-based green cards for a U.S. citizen’s spouse is 10 to 13 months.
If You Are Married to a Permanent Resident (a green card holder)
In this case, immigrant status isn’t readily available to you as it is when a foreign spouse is married to a U.S. citizen, which causes the processing time of the green card application to take longer. To change F-1 visa to a marriage-based green card, you have to file:
I-130 form, Petition for Alien Relative
As in the previous case, the sponsoring spouse, the permanent resident, will start the process by filing the I-130 form and relevant evidence proving that your marriage is bona fide.
Wait for the Priority Date to Become Current
When receives your I-130 application, USCIS will issue a priority date, and you will see what your place in the waiting line is.
Bear in mind that green cards are not readily available for spouses of green card holders and that there is an annual cap for the number of available green cards per year. Your priority date starts counting the moment the USCIS receives your I-130, and you will need to wait until it becomes “current”. Once your application becomes current, you can apply for a change of F-1 status to a marriage-based green card.
You check the monthly visa bulletin and observe the waiting line. The waiting period could be several months or even years, depending on how many applicants are ahead of you.
File the I-485 for Adjustment of Status
Once you see that your priority date became current, you will be eligible to file an I-485 form to adjust status from an F-1 to a marriage-based green card.
Along with a properly filed application and relevant evidence of your marriage, to adjust status, you will also have to:
Take Medical Examination
You need to undergo a medical examination as part of your adjustment of status process conducted by a USCIS-certified doctor.
Attending Marriage-Based Green Card Interview
An immigration interview is the last step in the process where U.S. officers will scrutinize the validity of your marriage. Your performance at the interview is very crucial to your application success. So, learn how to appear and behave.
What If F-1 Visa Expires While Waiting for the Marriage-Based Green Card?
Generally, it is illegal to remain in the U.S. when you’re status expires. If your F-1 status expires while your green card application is still processing, there are two options:
- You can apply for an extension of your F-1 visa or other temporary visas. Either way, if your application is approved, you will be able to stay in the U.S.
- You can leave the U.S. and continue the application process from your home country at the U.S. embassy or U.S. Consulate.
In case that you overstay your visa, you can expect severe punishment, so be careful. If you stayed for more than six months after your status expired, you might face the bar from reentering the United States for three years. If you overstayed for more than one year, there is a chance that you will not be allowed to enter the United States for up to ten years.
Receiving Your Marriage-Based Green Card
After completing the process, you will obtain a physical green card recognizing you as a lawful permanent resident. The USCIS will issue your green card to the address you stated in your application. The type of marriage-based green card will depend on the duration of your marriage.
If You Have Been Married for Less Than Two Years
If you are in marriage for less than two years, you will get a conditional resident status with a two-year validity period. The reason for issuing conditional green cards is to give more time to assess the bona fide relationship between you and your spouse.
You have to prove that you didn’t enter into the marriage to get a green card and become a U.S. lawful permanent resident. If you are still together after the two years validity as a couple, you should remove the conditions by filing and get a ten-year valid permanent green card.
If You Have Been Married for More Than Two Years Old
The USCIS will issue a standard unconditional green card for marriage over two years old. This green card is valid for ten years. After this period expires, you may choose to renew the green card or apply for citizenship after some years.
Work In the U.S. While Waiting for The Marriage-Based Green Card
When you submit your I-485, you will be given the option of filing other forms and get a travel and work permit. The processing time for change of status applications can take up to 12 months so Forms I-765 and I-131 will allow you to work or travel while you wait for your petition to be processed. These two forms have a shorter processing time than the green card.
The I-765 form
I-765 is an application form for employment authorization. Upon approval, you will be able to get the work permit, also called the Employment Authorization Document (EAD).
The I-131 is a travel permit allowing you to leave the United States and reenter while you still wait for your green card.
You can choose to remain with the same organization for your Optional Practical Training (OPT) or, you may apply to find a new job with another employer.
Attorney Can Help You File Change of Status Application!
Richard Herman is a U.S. immigration attorney having more than 20 years of experience. Richard and his team have helped dozens of clients to fulfill their dreams and start their lives in the United States and receive an immigrant visa and become permanent residents. Herman Legal Group law firm provides legal immigration services to clients around the globe.
If you want the attorney to help you change your nonimmigrant status and guide you easily through the application process, you may call us at (+1) (800) 808-4013 or (+1)(614) 300-1131. Also, you can use the online form and book your consultation with Richard Herman to be a step closer to your immigrant visa and your permanent resident status.