How to Change Your Status from an F-1 Visa to a Green Card through Marriage
Navigating from F-1 student status to a spousal visa
If you’re an F-1 student visa holder who has recently married a U.S. citizen or green card holder, you may be eligible to obtain a marriage-based green card. This process, called “adjustment of status,” allows you to stay in the United States with your spouse without leaving the country.
To be eligible to adjust your status from a student visa, you must:
- Be married to a U.S. citizen or green card holder.
- Have entered the U.S. legally with your F-1 student visa.
- Maintain your lawful F-1 status throughout the process.
The timing for the adjustment of status process can vary, but it roughly takes between 9 to 20.5 months, depending on your circumstances.
The 90-Day Rule
Timing is crucial when applying for a marriage-based green card. Immigration officers use the “90-day rule” to assess whether you were honest about your intentions when you first entered the U.S.
Avoiding the USCIS 90-day rule
- The Rule: If you apply for a marriage-based green card (specifically, file Form I-485) within 90 days of your last entry into the U.S., immigration officials may assume you originally entered on your student visa with the hidden intention of staying permanently. This can hurt your application.
- Best Practice: Wait at least 90 days after your last entry into the U.S. before both getting married and filing your green card application.
- Important Note: You can file Form I-130 (your spouse’s petition for you) at any time. It’s filing Form I-485 (your actual green card application) that triggers the 90-day rule.
- Overcoming the Presumption: You might still be able to prove your original intentions were genuine, but it will be more difficult. Check out this article for more details on the 90-day rule.
Calculating 90 days
- Find your most recent entry date on your I-94 travel record (officially called the “Form I-94 Arrival/Departure Record”).
- Add 90 days to that date. For example, if the entry date on your I-94 is January 1, 2018, 90 days later would be April 1, 2018. This is your 90-day rule deadline.
Important note
Each time you leave and re-enter the U.S., resets the clock for the 90-day rule. The rule only applies to your most recent entry to the U.S., regardless of what visas you held in the past. Changing visa types while already in the U.S. doesn’t change this. Here are some examples to illustrate how it works:
Scenario 1: Tourist to Student: If you came to the U.S. on a B-2 tourist visa and then later returned on an F-1 student visa, the 90-day rule applies to your F-1 entry date.
Scenario 2: Tourist, then Student without leaving: If you entered on a B-2, then got an F-1 approved before the B-2 expired without leaving the U.S., the 90-day rule counts from your original B-2 entry date, not the date you got the F-1 visa.
Proving that your plans or intent changed
The U.S. government may view applying for a marriage-based green card soon after entering on an F-1 visa as evidence that you never intended to leave after your studies. Overcoming this suspicion is crucial. To prove your relationship is real and your plans genuinely changed, demonstrate strong ties to your home country. Provide clear evidence of commitments you had there before your marriage, such as a job offer/internship awaiting your return, property/business ownership, or close family ties. Learn more strategies to address the “willful misrepresentation” concern.
Adjusting Status: Marriage Green Cards for International Students
There are two distinct pathways for international students seeking a marriage green card. In both cases, the process is called “adjustment of status.” The application process depends on whether you are married to a U.S. citizen or a green card holder.
Let’s discuss each scenario in more detail:
Scenario 1: Your spouse is a U.S. citizen
Eligibility Check
- You must be married. Make sure your marriage to a U.S. citizen is legally valid.
- You must have legally entered the United States (for example, using your F-1 student visa).
- You’re still in status. It’s important that you have kept your F-1 status valid during your entire stay.
Step 1:
The U.S. citizen spouse will file the Petition for Alien Relative (Form I-130) with USCIS on your behalf. This form essentially proves to the U.S. government that your marriage is real.
Step 2:
The foreign beneficiary will file the Application to Register Permanent Residence or Adjust Status (Form I-485) at the same time (also called concurrent filing), along with supporting documents (birth certificates, marriage certificates, passport photos, etc. ). This is the green card application and must be filled out and signed by the F-1 visa applicant.
Scenario 2: If you’re married to a green card holder
Important Notice (April 16, 2024):
If you’re an F-1 student married to a green card holder, getting your own green card might take longer than expected. The process for spouses of green card holders is facing delays. When your spouse files paperwork for you, the date they file the petition becomes what is known as your priority date. An earlier priority date generally means a shorter wait time for your green card. While you can still file your petition, be prepared for significant delays, meaning it could take a long time from when your spouse first files the paperwork to the date you can submit your final green card application.
Step 1: Start the process by filing Form I-130
- Your green card holder spouse will begin the process by filing the family sponsorship form, Form I-130 (Petition for Alien Relative), with USCIS on your behalf.
- Once Form I-130 is approved, you’ll get a priority date (like a place in line for the green card application).
Step 2: Wait for your visa number
Visa numbers are immediately available to spouses of U.S. citizens but not to spouses of green card holders. Spouses of green card holders face a wait. Your priority date determines when your visa number becomes available.
Step 3: Apply for your green card (depending on your F-1 status)
- Scenario 1: Your F-1 is still valid when the visa number arrives
- You can stay in the U.S. and file form I-485 to ‘adjust status.’ This is the typical process for spouses living in the U.S., married to green card holders.
- Once your marriage-based green card application is approved, your physical green card will arrive, typically within to months.
- Scenario 2: Your F-1 is expired by the time the visa number arrives
- Green Card Holder Files I-130: To kickstart your green card application, your spouse files Form I-130, establishing you as their eligible relative.
- Priority Date & Waiting: Upon I-130 filing, you get a priority date. Due to limits on green cards for spouses of green card holders, you’ll likely face a wait until your priority date becomes current.
- Leaving the U.S.: Since your F-1 is expired, you can’t legally stay in the US while waiting for your visa number. You must return to your home country (or another country where you have permission to stay).
- NVC Takes Over: When the I-130 is approved, it goes to the National Visa Center (NVC), part of the State Department, and you get an NVC case number.
- DS-260 & Processing: Once your priority date becomes current (check the Visa Bulletin), the National Visa Center (NVC) will contact you with instructions on how to pay fees, submit Form DS-260 (the online green card application), and provide supporting documents. It’s important to act on these instructions within one year of your priority date becoming current. Failure to do so may result in the NVC administratively closing your case.
- Consular Interview: When the NVC approves your case, they’ll schedule an interview at the U.S. consulate/embassy in your country.
- Green Card After Successful Interview: Following a successful interview, you’ll typically receive a visa stamp placed in your passport, allowing entry to the U.S. as a permanent resident within six months. Shortly after entering the U.S., you can expect your physical green card to arrive in the mail.
If your spouse is a green card holder and later becomes a U.S. citizen while you are waiting for a visa number, you can switch to the process described in Scenario 1.
Important:
Unless you can secure an extension of your F-1 status by enrolling in another degree program or obtaining a different type of temporary visa (such as an H-1B work visa), you must follow the process for spouses living outside the United States. If you manage to stay legally in the United States on a different basis, you would then follow the process for spouses living in the United States and married to a green card holder.
What Happens Next?
Getting your green card
Not all marriage-based green cards are created equal. The type of green card you receive — temporary or permanent — will depend on how long you’ve been married to your spouse at the time your application is approved. See this article for more details.
Working in the United States
F-1 students can apply for up to 12 months of Optional Practical Training (OPT) — more commonly known as “on-the-job training” in the United States — either before or (more typically) after completing their academic studies. During this period, graduates are authorized to work with a U.S. employer in their field, and their F-1 visa will remain valid. (Graduates with degrees in STEM — science, technology, engineering, and math — may stay for an extra 24 months of OPT, for a total of three years.)
Once OPT ends, the F-1 visa will expire, and the graduate will need to return to their home country unless they apply and get approved for another visa to continue living in the United States.
If you are working through the OPT program when you apply for a marriage-based green card, you may generally continue working under your F-1 status.
After submitting your marriage-based green card application, however, you will receive a new work permit (officially called the “Employment Authorization Document,” or EAD) within about 150 days (in some cases longer due to a rising backlog of work permit applications at USCIS). Unlike the work authorization tied to your F-1 status and OPT plan, this new work permit allows you to work for any U.S. employer. You can either continue working with your OPT employer or seek new employment. In either case, you must use your new work permit to be legally employed in the United States. Once you receive your marriage-based green card, you will no longer need a separate work permit. As a permanent resident, you can work for any U.S. employer.
FAQs
Be careful not to “overstay” — that is, to remain in the United States past the expiration date of your visa. Overstaying is an immigration violation that could stop you from re-entering the United States for several years, depending on how long you remained in the United States without a valid visa.
If you’ve overstayed, it’s a good idea to leave the United States within six months following your F-1 visa’s expiration date in order to avoid being barred from re-entering. If you overstay for six months or longer, you will not be able to return to the United States for three years. If you overstay for more than one year, you will be barred from the United States for 10 years.
If, however, you’ve overstayed and your spouse who is a green card holder becomes a U.S. citizen before you leave the United States, you can generally then switch to the process described in Path 1 above. Any amount of time that you overstayed would then be waived as a benefit of being married to a U.S. citizen.
Form I-130 can be filed on its own before or after the 90-day rule expires and will not trigger the 90-day rule.
However, if you file Form I-130, and afterward you travel abroad with F-1 status and return with that same status, you may have trouble re-entering the United States. That’s because immigration officers at U.S. borders and ports of entry (where you would physically enter the United States) have much discretion when screening travelers from abroad. If the immigration officer screening you discovers that you have a spouse in the United States, they are likely to suspect that you intend to live here permanently, which would conflict with the terms of your temporary F-1 visa. In such a case, they may deny you entry or even revoke your F-1 visa, and you likely would need to return to your home country.
You would be able to continue the marriage-based green card process from abroad at that point. But later, you’d need to prove to the U.S. government that you did not intend to deceive immigration officers when you returned to the United States as an F-1 student who was married to a U.S. green card holder.
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