Student With F-1 Visa Marrying a Green Card Holder

An F-1 visa is one type of student visa. A green card means U.S. lawful permanent residence, which is a long-term status that can eventually lead to U.S. citizenship. Assuming it’s a valid marriage, not a sham to get a green card, there are possible immigration benefits for an F-1 student who marries a green card holder.

However, there are limitations on these benefits. While the student may eventually obtain a U.S. green card through the marriage, the process is likely to take a long time – many years, in fact.  Meanwhile, staying in the U.S. the entire time may not be legally possible.

Eligibility for a Green Card Based on Marriage to a U.S. Lawful Permanent Resident

The spouse of a U.S. lawful permanent resident becomes what’s known in immigration law terms as a “preference relative,” in category 2A. That means the person is eligible for a U.S. green card – but not necessarily right away.

Only a limited number of immigrant visas are given out to preference relatives annually. The U.S. government usually runs out of visas in this category before the end of the fiscal year (every October). Everyone who doesn’t receive a visa must wait until the following year, and most likely beyond. In fact, the wait often lasts five years or more.

How Long You’ll Likely Wait

A person’s place on the waiting list is charted by his or her “priority date.” That’s the date upon which the U.S. green card holder filed the initial visa petition (Form I-130, issued by U.S. Citizenship and Immigration services or USCIS) on the intending-immigrant’s behalf.

To see the priority dates of people currently receiving U.S. visas, check the State Department’s Visa Bulletin, available online. Look on the family-based chart, at the row for category 2A.

Also notice that there are separate columns for certain countries, usually showing priority dates even older than the rest. This isn’t discrimination – it simply means that so many people from those countries applied for visas in that category that they have bumped up against per-country limits that also apply. They will have to wait even longer.

How Long You Can Legally Stay in the U.S.

You can legally remain in the United States for as long as you are in valid student visa status. Having an approved 1-130 on file, however, gives you no additional right to be in the United States. Only after your priority date becomes current and you have applied for a green card (to adjust status) do you have the legal right to stay here.

If you can make your student visa last until your priority date is current and you can submit an application to adjust status -- that is, get your green card in the United States -- great. If not, you must leave the United States at least within six months of the expiration date of your permitted stay as a student in order to preserve your right to a green card. Eventually, you will need to apply for the green card through a U.S. consulate in your home country.

The immigration laws contain harsh penalties for people who overstay a visa by six months or more. Those who do so face at least a three-year bar on reentry into the country; ten years if your overstay in the U.S. was one year or more. This means that if you stayed illegally in the U.S until your priority date became current, you could apply for your green card and travel to the U.S. consulate for your interview, only to then be told that you cannot return to the United States.

(Note that, as the spouse of a U.S. permanent resident who is no longer in lawful status, you will not be able to avoid traveling outside the U.S. for your consular interview, because you are no longer eligible to use the U.S.-based “adjustment of status” application procedure -- it's mostly only accessible to people who are in lawful status or are immediate relatives of U.S. citizens.)

The Permanent Resident Should Not Spend Too Much Time Outside the U.S.

The F-1 student may, as you see, have to spend a long time outside the U.S. waiting for his or her priority date to become current. What if the green card holding spouse leaves the U.S. to join him or her? That could cause the green card holder to lose his or her U.S. status, if the immigration authorities believe that the person has settled down in another country. Contrary to popular myth, it's not enough to reenter the U.S. every six months or year. If the green card holder leaves the U.S. with the intention of living elsewhere, the immigration authorities can decide, even if that person returns within a few days, that the person has abandoned his or her U.S. residence, and deny reentry.

What is true is that staying out of the U.S. for longer than six months will raise questions upon return, and staying away for a year or more creates a presumption that the person abandoned his or her residence. Talk to an attorney for details.

If the U.S. Permanent Resident Becomes a U.S. Citizen

The best thing that the green-card holding spouse could do in this situation is to keep track of when he or she will become eligible for U.S. citizenship, and then apply.  As soon as a permanent resident becomes a citizen, his or her spouse automatically becomes what’s known as an “immediate relative,” and eligible for a visa right away, without regard to priority date.

Better yet, the spouse of a U.S. citizen who entered the United States legally can apply for adjustment of status within the United States. Any period of overstay won’t matter, so long as you can get your green card application in before getting caught by the immigration authorties. No penalties will be imposed because, due to a technicality in the immigration laws, it’s only when you’re outside the United States that you can be penalized with a three- or ten-year bar upon returning.

Hiring an Attorney

If you have an F-1 visa and wish to remain in the United States based on marriage to a green card holder, contact an attorney. Based on a careful evaluation of your personal situation, the attorney may be able to find a solution allowing you to legally remain in the country.

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