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How to get a Change of Status from an F-1 Visa to a Green Card After Marriage

October 5, 2021
undocumented immigrant marries u.s. citizen

Summary

Some international students in the United States fall in love with, and marry, U.S. citizens and lawful permanent residents that they meet during their studies. You may consider adjusting your status from the nonimmigrant F-1 visa to a green card for immigrant visa status after you get married. This article explains some things to consider when adjusting your status from an F-1 visa to a marriage green card and explains the application process depending on your spouse's immigration status.

Overview

The 90-Day Rule and the Adjustment of Status Process

Immigration officers use a “90-day rule” for the adjustment of status application process. The rule is meant to ensure that those in the United States on an F-1 visa did not wilfully misrepresent their intended length of stay. If you hold an F-1 visa and you apply for a green card within 90 days of entering the United States, you will fail the 90-day rule. Immigration officers will presume that you did not actually plan to return to your home country before your visa expired. If you fail the 90-day rule, obtaining a green card will be very difficult. You might be able to convince immigration officials that you did originally intend to return home before your visa expired, but it’s best to wait until 90 days have passed before adjusting your F-1 student status.

You can check your Form I-94 Arrival/Departure Record to find your most recent date of entry into the United States. Then, add 90 days onto that date to figure out when you can begin applying to adjust your status.

Perhaps you first came to the United States with a B-2 visitor visa (tourist visa) and then later returned with F-1 nonimmigrant status. In this case, your 90-day rule begins on the date you entered the United States with F-1 status.

But, if you came to the United States with a B-2 visa and obtained an F-1 student visa while you were still in the United States and before your B-2 visa expired, the 90-day rule applies to the day you entered the country with your B-2 visa.

For more information on adjustment of status, you can read our complete guide to the process. 

How to Change Your Status from F-1 visa to Marriage Green Card

There are two routes for adjusting your status from F-1 visa to marriage green cardholder. Your course will depend on whether your spouse is a U.S. citizen or a green cardholder.

If your spouse is a U.S. citizen

If your spouse is a U.S. citizen, you’ll both need to file the following forms together, at the same time:

  • Form I-130, also known as the “Petition for Alien Relative,” or family sponsorship form. Your U.S. citizen spouse must sign and submit this form.
  • Form I-485, also known as the “Application to Register Permanent Residence or Adjust Status” or green card application form. You, the individual with F-1 status, must sign and submit this form.

You’ll also need to prove that you and your spouse married “in good faith,” meaning that the U.S. government will ask you to confirm that you did not marry only to obtain a green card. If this is the case, you’ll likely get your green card 10-13 months after U.S. Citizenship and Immigration Services (USCIS) receives your application.

Remember to keep the 90-day rule in mind when you apply for your green card. Only Form I-485 is subject to the 90-day rule. So, you can choose to either submit Form I-130 and Form I-485 together after 90 days since your most recent entry into the United States, or you can submit Form I-130 at any time and submit Form I-485 after 90 days since your most recent entry. But, note that separately submitting these forms is unusual in most cases. Concurrent filing, also known as the “one-step adjustment,” allows you to submit all required documents faster and it also helps USCIS process your application faster.

If you aren’t yet married, it’s best to wait 90 days to get married after entering the United States. Suppose you break the 90-day rule or marry too soon after arriving in the United States. In that case, an immigration officer will claim that you “wilfully misrepresented” your intentions in coming to the United States. If this happens, you may still be able to prove that you did not willfully misrepresent your intentions, but it can be difficult. You can prove that you did not willfully misrepresent yourself by providing evidence of your ties to your home country. For example, if you have a job offer in your home country waiting for you, you may be able to use that documentation to prove that your plans simply changed.

Be aware that, while your green card application is pending, you cannot travel outside of the United States unless you have an Advance Parole travel permit. If you travel outside of the United States without Advance Parole, the U.S. government will stop considering your green card application.

For more information, check out our article on the marriage green card process.

If your spouse has a green card

If your spouse is a U.S. green card holder, they’ll need to file Form I-130, also known as the “Petition for Alien Relative” or family sponsorship form. When U.S. Citizenship and Immigration Services (USCIS) approves your Form I-130, you’ll have to wait until they provide you with a visa number. You can apply for a marriage green card after you receive your visa number. 

If your F-1 visa expires after your receive your visa number, you can stay in the United States and apply for a green card through the same process as most spouses of U.S. green cardholders. You’ll need to complete Form I-485, the “Application to Register Permanent Residence or Adjust Status,” or the green card application. If USCIS approves your Form I-485, they will mail you your green card. The entire process usually takes USCIS about 29-38 months after they have received your Form I-130.

In some cases, your F-1 visa may expire before you receive your visa number. If this happens, you must leave the United States after your F-1 status expires and apply for a green card through the marriage green card consular process in your home country. This means that you will apply for a U.S. green card through your local U.S. consulate or embassy. For this process, you’ll need to submit Form DS-260, the “Immigration Visa Electronic Application,” or the online green card application. If U.S. immigration officials approve your Form DS-260, USCIS should send you your green card between 27-46 months after they first receive your Form I-130. 

If your F-1 visa is expiring before you receive your visa number, you may also be able to extend your F-1 status or apply for a temporary B-2 visitor visa. If you do so, you can stay in the United States and apply for a green card by adjusting your status with Form I-485.

Suppose your U.S. green card holder spouse gets U.S. citizenship while you wait to receive your visa number. In this case, you can follow the process for spouses of U.S. citizens when applying for a green card, as described in the section above. Your visa number will immediately become available, and you can begin your application.

Always remember to keep in mind the 90-day rule. Wait at least 90 days since your most recent entry into the United States before submitting Form I-485. If you submit Form DS-260 instead, the 90-day rule won’t apply since you’ve already honored your visa expiration.

Can You Change Your Status to a Green Card if You Overstayed Your F-1 visa?

You should never overstay your F-1 visa. Overstaying your visa means that you have remained in the United States illegally after your visa expired. Overstaying your visa is a serious violation of immigration law. If you overstay, U.S. Citizenship and Immigration Services (USCIS) may prohibit you from returning to the United States for several years. The length of your ban from the United States usually depends on how long you overstayed your visa.

Be sure to make preparations to leave the United States within six months of your F-1 visa’s expiration. If you leave within six months of your status expiration, you may be able to avoid being banned. Those who overstay for more than six months will not be able to enter the United States for three years. Those who overstay for a year or longer cannot enter the United States for ten years.

Suppose you overstayed your visa, but your U.S. green card holder spouse has recently gained U.S. citizenship. In this case, you can remain in the United States and begin your green card application process as a spouse of a U.S. citizen. USCIS will waive your overstayed time since you are now married to a U.S. citizen.

If you’ve overstayed your visa and would like additional guidance, check out our article on the adjustment of status process.

Can You Keep Working on Your F-1 Visa While Your Marriage Green Card is Pending?

F-1 visa students can apply for 12 months of “on-the-job training” or Optional Practical Training (OPT) before or after finishing their degrees. During the OPT period, F-1 visa holders can work under an employer in the United States in their area of expertise. During this period, their F-1 status will still be valid. F-1 visa holders who obtained degrees in science, technology, engineering, or math (STEM) can use an extra 24 months of OPT.

If your OPT ends, your F-1 visa will expire. At this point, you’ll need to return to your home country. You may stay in the United States if you can obtain another visa and had begun the adjustment of status process before your F-1 visa expired.

Those in their OPT period can continue working under their F-1 status during their marriage green card application. But, they’ll need to apply for and receive a work permit or employment authorization document (EAD) within approximately 150 days of submitting their marriage-based green card application. This work permit will let you work for any U.S.-based employer, so you can choose to remain with your OPT employer or find a new employer. If you eventually receive a green card, you won’t need this work permit anymore: you now have the eligibility to work for any U.S. employer.

For more help, see our complete guide to the work permit application process. Note that U.S. Citizenship and Immigration Services (USCIS) sometimes experiences longer processing times when they receive a surplus of work permit applications.

Conclusion

The adjustment of status process can be complicated, but working with a good immigration lawyer can make it easier. If you can't afford the attorney fees and don't want to handle your marriage green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!

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