I Have An F-1 Student Visa and Just Married a Green Card Holder
I have a student visa, and my spouse has a Green Card. Can he apply for my Green Card now or should we wait until after he becomes a U.S. citizen?
Will I get into trouble if I came here to study but ended up marrying someone who holds a Green Card?
What if I overstay my student visa? Can I still get a Green Card if my spouse, who holds a Green Card, petitions for me?
The above are examples of the types of calls we get all the time, not just from people who hold student visas, but from the whole range of visa holders, including H-1B, O-1, J-1, E-2, etc. A recent client approached us with the following facts:
I grew up in the United Kingdom and am currently on an F-1 student visa to attend an art school in New York City to pursue my Masters in Visual Arts. While in school, I have re-united with a childhood friend and we have been dating for a year. We’d like to get married, but he has a Green Card and I only have a few months left on my OPT, after which I have no status. Is it still okay for me to marry him?
One of the most important things to keep in mind when the LPR spouse (legal permanent resident spouse/Green Card holder) files an immigration petition for their foreign national spouse is whether the foreign national spouse will be able to maintain their own status, since the foreign national will not be allowed to adjust their status via an I-485 unless they have maintained their status continuously. In other words, after the Petition for Alien Relative is filed by the LPR spouse for the foreign national spouse, the case will have to be approved AND the priority date has to be current as per the I-130 receipt date, before the Adjustment of Status Petitions can be filed. There is usually a queue for this category which is known as the F2A category in the Visa Bulletin.
So how does a student who is unable to maintain their status, navigate this sensitive process? Assuming that ICE doesn’t come knocking at their door for being out of status, the following strategies may work—but of course, an attorney should be consulted.
If an I-130 has been filed, and the student is running the risk of falling out of status, e.g., OPT is expiring, the student can always return to their home country and wait for the I-130 to be approved before accruing unlawful presence. The case can then be transferred for further processing at the NVC and then their local US Consulate. One of the main advantages of this process is that the foreign national stays safe by not accruing any unlawful presence, and if the case was filed properly from the outset and the bona fides are strong, the interview may go smoothly. With proper preparation the foreign national can come back to the US with an actual Green Card. Also, the ever-increasing Adjustment of Status delays makes this option a viable option.
If the petitioning Green Card spouse is eligible to apply for US citizenship, then they should apply as soon as possible. If an I-130 is filed at the outset, and simultaneously, the petitioning spouse applies for US citizenship—this may help reduce the processing time. If the petitioning spouse becomes a US citizen before the I-130 is approved, then one can maneuver to get the I-130 upgraded to the “Immediate Relative of a US Citizen" category and, potentially, speed up the I-130 processing time.
Even though an F-1’s overstay may not hamper the F-1’s chance of obtaining a Green Card if the bona fides of the marriage are strong, we certainly do not advise that anyone at any point fall out of status. In the current climate, immigration policies are unforgiving, and if a marriage-based Adjustment of Status is denied despite an authentic relationship, the F-1 overstay beneficiary may not be able to invoke any further options or protections, since they may be out of status as soon as the case is denied.
With any immigration issue, it serves the applicants to be prepared in advance of filing any immigration petitions. The best way to make sure that your evidence is solid, is to hire an experienced immigration attorney to handle the specifics, as each case must be prepared in a customized fashion.
Over the years we at Khunkhun Law have helped countless individuals obtain and keep their Green Cards. Retaining Khunkhun Law will ensure that your case is in the right hands, as we offer a customized approach to each case.
To get in touch with us you can call us, email us at info@khunkhunlaw.com or review other options to get in touch with us for an immigration consultation.