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Living in the U.S. as an international student can be tough since everything may be new to you. However, slowly but surely, you start to call this place away from family your new “home.” You’ve grown accustomed to the new culture, you have a circle of friends you enjoy spending time with, and you even found a marriage partner who happens to be a US Citizen. As much as you miss your home country, you feel there are more opportunities for a brighter future here in the U.S.
Now for those who’ve been trying to gather information regarding how F1s can obtain Green Card through marriage to a US Citizen, you may have already realized that…
1) your friends, although helpful in providing some guidance, aren’t the most reliable source
2) USCIS website isn’t user friendly and seems like its purpose is to confuse you more
3) immigration firms, although they often have helpful FAQ sections, their goal is to reel you in for a consultation so that they can retain your case and charge you $1000+ application filing fee that you could’ve most likely done yourself and
4) online forums are too much to scroll through and are often entered by people whose answers are based solely on their own experience.
Yes, it can be frustrating and confusing. But that’s why I decided to write this. Although you will not find instructions on how to properly file for a Green Card in this post, I’m sure you’ll find this useful since you’ve most likely wondered, at one point or another, about the following:
Do I still need to maintain my current F-1 status until I officially get my green card?
Here’s the short answer to this (but you should read on for details):
Although it is STRONGLY recommended to maintain your F-1 status until you become a Lawful Permanent Resident, it is NOT mandatory. It is OKAY if you’ve become “out of status” as long as your Green Card is ultimately approved.
Now for anyone who is not an F-1, he/she may be thinking - “Why would anyone question whether they need to keep a valid F-1 status if their green card hasn’t been approved yet?” It’s completely natural to think that way since an invalid F-1 status would make the person, well… “illegal” or “out of status.”
But for the F-1’s reading this, the primary reason for wanting to know the answer to this question is to understand all the options that are available to them so that they have all the information they need to make the best decision(s) for their situation. While many of you may be wondering out of pure curiosity, there are some who have other personal/situational reason(s) that makes the need for this question answered so urgent as they plan for marriage. Here are some of the most common situations I found and they usually fall into the following two categories. Do either of these sound like what you’re going through?
1. YOU’RE THINKING OF GIVING UP YOUR F-1 STATUS
For whatever personal reason, you are having a hard time maintaining your F-1 status (see examples below). You may be wondering if it’s necessary to maintain your status since you heard from others and/or through online sources that it is okay to give up your F-1 status if you’re going to get married to a U.S. citizen and file for green card anyway.
Common reasons:
1. $$$ - Tuition is crazy expensive and money is tight
2. You (or your parents) can afford the tuition, but why would you pay so much if getting a green card can possibly give you the benefit of a cheaper tuition and/or financial support. **Talk to your academic advisor about qualifications for in-state tuition and for FAFSA once a F-1 becomes a legal permanent resident.
3. You’re a party animal and you just don’t want to study anymore.
2. YOU’RE ALMOST DONE WITH YOUR PROGRAM AND HAVE CONCERNS WHETHER TO EXTEND
I-20s TO MAINTAIN F-1 STATUS
Whether 1) you’re almost done with your academic program or 2) you’re done with your academic program and now working under OPT that’s about to expire, you may be wondering if it is absolutely necessary to maintain your F-1 status by reapplying to another program just for the sake of maintaining your F-1 status. The process is a pain in the ass and reapplying to a new program would mean more money out of pocket for school tuition.
Like I mentioned earlier in my answer above, although it is STRONGLY recommended to maintain your F-1 status until you become a Lawful Permanent Resident, it is NOT mandatory. USCIS will not penalize, and will instead “forgive” you for being out of status as long your green card application after marriage to a US Citizen is ultimately approved.
However, there are always the “what ifs…”
For example…what if you’ve failed to maintain F-1 status and became out of status while the green card application is pending and your marriage goes downhill. If either one of you decides not to proceed or cooperate with the green card process, the application will ultimately get denied, leaving you out-of-status/illegal.
If it were up to me, I would make every attempt to minimize any risk I may have by keeping my legal status valid. Having the peace of mind knowing that you are in legal status during the entire period will definitely keep a load of stress and anxiety off the shoulders. Thanks for reading and feel free to leave a comment if you found this useful.
NOTE: This article is based on my experience of being in the immigration field for 10+ years as a Senior Paralegal and does not constitute legal advice and/or representation. I recommend you to consult an attorney if you require legal advice.
So why did you post the exact same post on Reddit? And on immigration Voice?
Anyway, you cannot extend an F-1 visa, a non-immigrant visa, if you are engaged to be married or are married to a USC, as marriage or impending marriage seeking a visa change/AOS imply immigrant intent.
Last edited by nightlysparrow; 03-16-2016 at 02:46 PM..
you cannot extend an F-1 visa, a non-immigrant visa, if you are engaged to be married or are married to a USC, as marriage or impending marriage seeking a visa change/AOS imply immigrant intent.
Yes, you are right with your statement above (given that the individual is in their home country OR in the U.S. but going back to their home country). However, my post is referring to people in F-1 status in the U.S. and engaged (or recently married) to a U.S. Citizen. This does not have anything to do with individuals whose F-1 visa is expired and need to go back to their home country to have it renewed at the U.S. Consulate or U.S. Embassy. This is about maintaining a valid F-1 status, which determines the person’s legal status here.
Just in case you’re not aware of the difference between F-1 Visa and F-1 status:
F-1 visa is issued by the U.S. Consulate abroad and is needed to enter the U.S. or return back to America after traveling outside the country. The expiration date on the visa page is the last day they can use the visa to re-enter the U.S; not the date they must leave America.
F-1 status allows the individual to remain in the U.S. for the intended purpose of visit: to pursue a full time course of study or practical training. They can maintain their status with an expired F-1 visa; however, if they go out of the country, they will not be able to come back to U.S. unless they are able to extend or obtain another F-1 visa from the U.S. Consulate.
It is okay for an F-1 to apply for AOS after getting married to a U.S. citizen as long as the person didn’t have immigrant intent to begin with. USCIS normally checks the individual’s last entry into the U.S. in determining the person’s immigrant intent. Obviously, if they came to the U.S. with F-1 visa and then decided to get married to a US citizen right away, then USCIS would be highly suspicious of the applicant having “immigrant intent.”
USCIS advises students to maintain full-time registration in their degree program up until graduation or until their green card application is approved. This is because (as I explained in my initial post) if the green card application is denied for whatever reason, then they can still show that they are maintaining their F-1 status, non-immigrant status, and would then be able to remain in the U.S. until completion of their academic program. If they did not maintain full-time registration as a student and were found to not be maintaining their status, then they will be considered “out of status. “
USCIS advises students to maintain full-time registration in their degree program up until graduation or until their green card application is approved.
Will you provide a link to this USCIS info? Want to learn.
I have someone who came to the US in 2003 on a F-1 visa. For the reasons given, he could not afford to stay in school. That is since 2006. Are you saying that ten years later, he can still apply for a green card? His F-1 visa expired a long time ago.
I have someone who came to the US in 2003 on a F-1 visa. For the reasons given, he could not afford to stay in school. That is since 2006. Are you saying that ten years later, he can still apply for a green card? His F-1 visa expired a long time ago.
No. He overstayed, he has no current legal status. He can be deported at any time, and can be subject to a 10-year ban from returning. If he has committed any crimes, the ban may be permanent.
No. He overstayed, he has no current legal status. He can be deported at any time, and can be subject to a 10-year ban from returning. If he has committed any crimes, the ban may be permanent.
I agree with this' but it wasn't clear in the long post, so I had to ask.
I have someone who came to the US in 2003 on a F-1 visa. For the reasons given, he could not afford to stay in school. That is since 2006. Are you saying that ten years later, he can still apply for a green card? His F-1 visa expired a long time ago.
Quote:
Originally Posted by nightlysparrow
No. He overstayed, he has no current legal status. He can be deported at any time, and can be subject to a 10-year ban from returning. If he has committed any crimes, the ban may be permanent.
Nightlysparrow is correct with the statement above. However, if your friend is married to a U.S. Citizen, then he should be able to apply for a green card through the spouse although he has been out of status for 10 years. BUT, if he has any criminal records, then I strongly recommend your friend to meet with an immigration attorney and seek professional and legal advice before applying for a green card.
If your friend is NOT married, he is not eligible to file for green card since his status has expired. In this case, he can look into “employment-based immigration” where a prospective employer agrees to sponsor you for a green card. There are legal professionals that often advise clients to go through this route so that they would be ready to file their green card application in the event that there is a new immigration reform act in the future that allows these people to apply. In other words, legal professional advises clients to look for a prospective employer based on his job position, File Labor Certification, and then file I-140 (only) at this time. He will not be able to file green card after his I-140 is approved because he is considered out of status - unless he has 245(i). Therefore, he will need to wait until there is a new immigration reform act which will allow him to file his green card right away. Nobody knows when, or if, the new immigration reform act will take place, but it’s better to be ready when it does happen. For further information, you need to seek an immigration attorney.
Nightlysparrow is correct with the statement above. However, if your friend is married to a U.S. Citizen, then he should be able to apply for a green card through the spouse although he has been out of status for 10 years. BUT, if he has any criminal records, then I strongly recommend your friend to meet with an immigration attorney and seek professional and legal advice before applying for a green card.
If your friend is NOT married, he is not eligible to file for green card since his status has expired. In this case, he can look into “employment-based immigration” where a prospective employer agrees to sponsor you for a green card. There are legal professionals that often advise clients to go through this route so that they would be ready to file their green card application in the event that there is a new immigration reform act in the future that allows these people to apply. In other words, legal professional advises clients to look for a prospective employer based on his job position, File Labor Certification, and then file I-140 (only) at this time. He will not be able to file green card after his I-140 is approved because he is considered out of status - unless he has 245(i). Therefore, he will need to wait until there is a new immigration reform act which will allow him to file his green card right away. Nobody knows when, or if, the new immigration reform act will take place, but it’s better to be ready when it does happen. For further information, you need to seek an immigration attorney.
Thanks for that info. I knew that he needed an attorney already. I was just posting a situation that illustrated the earlier posts were not clear enough. I knew that, and posted this example to show that. The earlier post (was it the OP?) made it seem like my friend had a chance to get a green card even though his F-1 expired.
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