How to Apply for Marriage Green Card as an F-1 International Student
When an international student on F-1 visa falls in love with a U.S. citizens or lawful permanent resident they meet while studying in the United States, the student may apply for a marriage based green card through a process called "Adjustment of Status" in order to stay with their spouse in the United States. Transitioning from F-1 student visa to permanent residency status is not a straight forward process. There are several important things to consider. What is the timeline for the green card process? What are the requirements for the U.S. spouse? What are the travel, and working restrictions while waiting for the green card approval?
How Soon Can I Apply for the Marriage Green Card from F-1 Student Visa?
When an international student enters the United States on a student visa, one of the things they have to show on their application is that they intend to return home once their course of study is complete in the United States. If a student applies for a marriage green card during their first 90 days in the United States, USCIS will presume that the student “willfully represented” their intentions and had no plan of returning to their home country. This is called the “90-day rule.” Overcoming the U.S. government’s presumption of “willful misrepresentation” can be difficult, so it’s best to avoid falling under this rule. To calculate whether the student is within this rule, find the most recent date of entry then add 90 days onto that date to figure out when they can begin applying to adjust their status.
Can the Spouse of a Green Card Holder Apply?
Yes. Both spouses of lawful permanent residents and United States citizens can apply to obtain lawful permanent residence (a green card) in the United States. While the process of applying is the same, there are critical differences. One difference is the existence of a quota. Spouses of United States citizens are exempt from the immigrant visa preference quotas. What this means is that there is no limit on how many spouses of United States citizens can receive lawful permanent residence in any one year, therefore, no wait line. In contrast, however, there is a quota on the number of spouses of lawful permanent residents who can become lawful permanent residents each year. That means that the spouse of a lawful permanent resident may need to wait an additional amount of time after the approval of the petition to apply for a green card.
Another big difference is that the spouse of a United States citizen who entered the United States on most types of visas can apply for lawful permanent residence in the United States even if their lawful status expired. On the other hand, a spouse of a lawful permanent resident must be in lawful status in order to apply for a green card in the United States. This could impact the situation quite a bit depending on when the student’s F-1 visa expires.
For example, when a F-1 student files for adjustment of status, the student has to wait until USCIS provides a visa number. After the student receives the visa number, they can apply for the marriage green card. If they receive the visa number before the expiration of the F-1 visa, they can file Form I-485, the green card application. If, however, the F-1 visa expires before they receive the visa number, the immigrant spouse must leave the United States and apply for the green card from their home country unless they can extend their F-1 visa or apply for a bridge visa, like a temporary B-2 visitor visa.
Can I Travel outside the U.S. while the Green Card Application is Pending?
Another consideration when transitioning from an F-1 visa to a marriage green card is travel restrictions. While the green card application is pending, the immigrant spouse cannot travel outside of the United States without what’s called an Advance Parole. If they travel outside of the country without this document, the green card application will be considered abandoned. Therefore, it is very important to get an Advance Parole before travel.
Can I Work while the Green Card Application is Pending?
An international student on an F-1 student visa who gets married to a United States citizen or legal permanent resident might be able to keep working while their green card application is pending as long as they have valid employment authorization based on their F-1 status. If that authorization expires before their marriage-based green card is approved, they will need to stop working and apply for a work permit based on their pending I-485 application. The application for this employment authorization document (EAD) is typically submitted concurrently with the I-485 adjustment application. In any event, it must be submitted within approximately 150 days of submitting the marriage-based green card application. This permit allows the applicant to work for any U.S. based employer, including the original OPT (Optional Practical Training) employer or a new employer. If the green card petition is approved, the immigrant spouse will be eligible to work for any U.S. employer.
Can I Apply for Adjustment of Status if I’m on OPT or STEM OPT?
Yes. You may apply for adjustment of status while on OPT since you are still in valid F-1 student status.
Can I Apply for Adjustment of Status if my F-1 visa expired?
It depends. If your spouse is a U.S. citizen, then you may still apply for adjustment of status even if your F-1 visa expired. If, however, your spouse is a U.S. permanent resident, then you may need to apply from abroad. Consult an immigration attorney immediately if this is your situation.
What Forms Do I Need to File for Adjustment of Status from F-1 Visa?
An F-1 visa holder may apply to adjust their status from F-1 visa status to green card within the United States. An adjustment of status application typically consists of the following forms (and their required evidence).
G-1145, E-Notification of Application
G-28, Notice of Entry of Appearance of Attorney
I-130, Petition for Alien Relative
I-130A, Supplemental Information
I-485, Application to Register Permanent Residence
I-864, Affidavit of Support
I-864, Affidavit of Support (if using a joint sponsor)
I-765, Application for Employment Authorization
I-131, Application for Travel Document
I-639, Report of Medical Examination and Vaccination Record
What Supporting Documents Do I Need to Prove Our Marriage is Bona Fide Marriage?
Photos of the couple together in different settings
Marriage Certificate
Joint bank account
Joint rental lease or housing deed
Joint insurance card and policy
Birth Certificates of your children
Affidavits prepared by common friends who have knowledge of your bona fide relationship
What Other Supporting Documents to Include in the Marriage Green Card Application?
Passport Biography page and visa page
Birth certificate
Naturalization Certificate
Employment documents
W-2s
Last 6 month’s paystubs
Employment verification letter
Federal tax return most recent tax year
Passport size photos
What are the Marriage Green Card Income Requirements for the U.S. Sponsoring Spouse?
In order to sponsor a foreign spouse for a marriage based green card, the U.S. citizen or green card holder must submit the affidavit to financially support the foreign spouse using form I-864. There are strict income and asset requirements for the U.S. sponsor. The minimum income is typically $21,775 for a household size of 2, and goes up as the household size increases.
What is the Marriage Green Card Interview?
You will have an interview for your marriage based green card. This process is for the USCIS to test that you have a bona fide marriage, or a real marriage. The interview should take anywhere from 10 to 40 minutes. If it goes well, you should receive your conditional green card in the mail after one week.
What is the Removal of Conditions (I-751) Process?
If you've been married for less than 2 years while your spouse is granted permanent resident status, your spouse is conditionally given permanent resident status. After you’ve been married for a certain period of time, you and your spouse will apply together to remove the conditions of residence using Form I-751, Petition to Remove the Conditions of Residence. After a successful removal of conditions, your foreign spouse will become an official green card holder.
Why Hire a F-1 visa to Marriage Green Card Attorney?
An immigration lawyer at Xu Law Group can help with your green card marriage application, forms, documents, supporting evidence, interview preparation, receive government agency notices on your behalf, and ensure your green card petition happens smoothly. Immigration law can be confusing. Consult an experienced immigration law firm today to start your green card journey.
Are you looking for an attorney for questions regarding an F-1 student marriage green card application process? Contact Xu Law Group today.
About the Attorney:
Toni Xu is an experienced immigration attorney who represents international couples and their loved ones.
The information on this page should not be construed as legal advice.