Marrying An International Student: Options For Green Card Holders

International students who fall in love and marry US citizens or permanent residents during their studies often want to live with their spouses permanently in the United States. To do this, they must obtain a marriage-based green card. The process, called adjustment of status, is not straightforward and can be complicated, but it allows the international student to stay in the US with their spouse without leaving the country.

International students can marry US citizens or permanent residents

International students on F-1 visas can marry US citizens or permanent residents and apply for a marriage-based green card. This process is called "Adjustment of Status" and allows the student to stay in the US with their spouse without leaving the country.

To be eligible for this process, the student must have entered the US legally with their F-1 visa and maintained their lawful F-1 status throughout the process. Timing is crucial when applying for a marriage-based green card. If a student applies during their first 90 days in the US, the 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," and overcoming this presumption can be difficult.

The process for spouses of green card holders is currently facing delays. When the spouse files the paperwork, the date becomes the student's priority date, which generally means a shorter wait time for their green card. The student's spouse will begin the process by filing the family sponsorship form, Form I-130 (Petition for Alien Relative), with the USCIS on the student's behalf. Once Form I-130 is approved, the student will get their priority date.

The student will also need to submit Form I-485 (Application to Register Permanent Residence or Adjust Status) with the required supporting documentation. This includes the fees, marriage certificate, evidence of the termination of any previous marriages, and birth certificates for both the student and their spouse. The USCIS will then review the application and send a notice for an interview with the student and their spouse. The purpose of the interview is to ascertain that the marriage is bona fide, or real, and based on the intention to spend life together. If the interview goes well, the student should receive their conditional green card in the mail after one week.

It's important to note that being in love or getting married to a US citizen or permanent resident doesn't automatically guarantee a permanent stay for an international student. The process of transitioning from an F-1 student visa to permanent residency status is not straightforward, and there are several important considerations, including the timeline, requirements for the US spouse, and travel and working restrictions while waiting for the green card approval. Additionally, F-1 visa holders may experience implications for their status during the processing period, so it's recommended to discuss this with an immigration attorney.

The process of applying for a green card

Firstly, it is important to determine your eligibility category and whether you need to be sponsored or petitioned for by someone else. If you are an international student on an F-1 visa who has married a U.S. citizen or green card holder, you may be eligible for a marriage-based green card. This process is known as "adjustment of status" and allows you to stay in the U.S. with your spouse without leaving the country. To be eligible, you must have entered the U.S. legally with your F-1 visa and maintained your lawful status throughout the process. It is also important to consider the timing of your application, as the "90-day rule" may imply that you misrepresented your intentions when you first entered the U.S.

Once you have determined your eligibility, you will need to complete at least two forms: an immigrant petition and a Green Card application (Form I-485). If your spouse is a U.S. citizen, they will need to file a family sponsorship form, Form I-130 (Petition for Alien Relative), with USCIS on your behalf. If your spouse is a green card holder, they will also need to submit an affidavit to financially support you using Form I-864. There are strict income and asset requirements for the sponsor, with a minimum income of $21,775 for a household size of 2.

After USCIS approves the immigrant petition and there is a visa available in your category, you will file either a Green Card application with USCIS or a visa application with the U.S. Department of State. You will then go to a biometrics appointment to provide fingerprints, photos, and a signature, followed by an interview. The interview will test that you have a bona fide marriage and typically lasts between 10 and 40 minutes. If your application is approved, you will receive your conditional green card in the mail after one week. If you have been married for less than two years, your spouse will be granted conditional permanent resident status, which can be removed after a certain period by applying together using Form I-751.

It is important to note that the process of applying for a green card can be complicated, and it is recommended to consult an experienced immigration lawyer or immigration attorney to ensure a smooth application process.

The financial requirements for an F-1 visa holder

The F-1 visa is a non-immigrant visa that allows international students to temporarily live and study in the US. To be eligible for an F-1 visa, applicants must meet the following financial requirements:

• Applicants must be enrolled in an academic educational program, a language-training program, or a vocational program.
• Applicants must be enrolled full-time at an accredited academic institution, college, university, seminary, conservatory, academic high school, elementary school, or another academic institution approved by the Student and Exchange Visitors Program, Immigration & Customs Enforcement (ICE).
• Applicants must have sufficient funds to support themselves for the entire duration of their studies. This includes covering tuition fees and living expenses.
• Applicants must demonstrate English proficiency or be enrolled in courses leading to English proficiency.
• Applicants must maintain a residence abroad with no intention of giving it up.

It is important to note that F-1 visa holders are restricted in the type and location of their employment. They may not work off-campus during their first academic year but may accept on-campus employment under certain conditions. After the first academic year, F-1 students may engage in specific off-campus employment, such as Optional Practical Training (OPT) or STEM OPT.

The timeline for the green card process

The process of obtaining a marriage-based green card can be complicated and time-consuming. Here is a step-by-step guide to the timeline for the green card process for an international student marrying a U.S. citizen or green card holder:

Step 1: Eligibility and Timing

To be eligible for a marriage-based green card, the international student must be married to a U.S. citizen or green card holder and have entered the U.S. legally with an F-1 student visa. It is important to note the "90-day rule," which states that if a student applies for a green card within their first 90 days in the U.S., the government may presume that the student had no intention of returning to their home country. Therefore, it is advisable to wait until after this 90-day period to begin the application process.

Step 2: Adjustment of Status

The process of adjusting one's status from a nonimmigrant to an immigrant is called "Adjustment of Status." This process allows the international student to stay in the U.S. with their spouse without leaving the country. The timing of this process can vary depending on individual circumstances, but it typically takes around 9 to 10 months.

Step 3: Financial Requirements

The U.S. citizen or green card holder spouse must submit an affidavit to financially support their foreign spouse using Form I-864. There are strict income and asset requirements, with a minimum income of $21,775 for a household of two, increasing with household size.

Step 4: Marriage Verification

The couple will undergo an interview process with the USCIS to verify that they have a bona fide marriage. This interview typically lasts between 10 and 40 minutes. If the interview is successful, the foreign spouse will receive their conditional green card in the mail after about one week.

Step 5: Permanent Residence

If the foreign spouse has been married to the U.S. citizen for less than two years when their Form I-485 is approved, they will be granted conditional permanent resident status for two years. After this period, the couple must apply together to remove the conditions of residence using Form I-751. Once this is approved, the foreign spouse becomes an official green card holder.

It is important to consult with an experienced immigration lawyer throughout this process to ensure a smooth transition and avoid any legal complications.

The travel and working restrictions

If an international student on an F-1 visa marries a US citizen or green card holder, they may be eligible for a marriage-based green card. This process, called "adjustment of status", allows the student to stay in the US with their spouse without leaving the country. However, it is important to note that marriage to a US citizen or green card holder does not automatically guarantee a permanent stay for an international student.

The process of obtaining a marriage-based green card can be complicated and time-consuming. One critical consideration is the timing of the application. The "90-day rule" states that if a student applies for a marriage-based green card during their first 90 days in the United States, the USCIS will presume that the student "willfully misrepresented" their intentions and had no plan of returning to their home country. Therefore, it is generally recommended to wait at least 90 days before applying for a marriage-based green card.

During the application process, the student must maintain their lawful F-1 status. This includes ensuring that their F-1 visa remains valid, as the expiration of their status could result in unlawful presence in the United States and negatively impact their future immigration benefits. To avoid this, students can consider extending their F-1 status by enrolling in another degree program or obtaining a different type of temporary visa, such as an H-1B work visa.

While waiting for the green card approval, there may be travel restrictions for the international student. It is recommended to apply for Advance Parole if planning to leave the country immediately after getting married, as it can take several weeks to obtain. Once granted Advance Parole, individuals can legally re-enter the US without delay and without needing to obtain an immigrant visa.

In terms of work authorization, an Employment Authorization Document (EAD) can be obtained by submitting Form I-765 along with Forms I-130 and I-485. This will allow the individual to work in the United States while their adjustment of status application is pending.

Frequently asked questions