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 who recently married a U.S. citizen or green card holder (permanent resident), you can apply for a marriage-based green card to stay and live with your spouse in the United States. This process is officially known as “adjustment of status.”
Before applying, it’s important to be aware of your eligibility and any potential issues you may face in the process. It’s also crucial to understand how timing can affect the success of your application.
Boundless can help you adjust from a student to a marriage green card, making it easy to complete your green card application and avoid common problems. Learn more about what Boundless can do to help.
Not sure which next steps make sense after you graduate? Take our visa quiz to make a plan that works for you.
The 90-Day Rule
The timing makes a big difference in the outcome of a marriage-based green card application.
When evaluating this type of application, immigration officers apply a special guideline called the “90-day rule” to determine whether a spouse seeking a green card was truthful about their original intention for coming to the United States.
In short, if you apply for a green card during your first 90 days in the United States, the U.S. government will presume that you “willfully misrepresented” your intentions for coming — that is, that you had no plan of returning to your home country before your F-1 visa expired.
You may still be able to convince the U.S. government that you originally intended to honor the terms of your student visa, but you’ll be facing an uphill battle. Please see this article for more details on the 90-day rule.
Calculating 90 days
To determine when that 90 days would conclude, find the date of your most recent entry to the United States by checking your I-94 travel record (officially called the “Form I-94 Arrival/Departure Record”), then add 90 days. For example, if the entry date on your I-94 is January 1, 2018, 90 days later would be April 1, 2018.
It’s important to note that the 90-day rule applies only to your most recent entry to the United States.
If, for instance, you first entered the United States with a B-2 visitor (tourist) visa and then returned to the United States with an F-1 visa, the 90-day rule would apply to the date you entered the United States with the F-1 visa.
But let’s say you entered with a B-2 visa, then applied and were approved for an F-1 student visa before your B-2 visa expired and while you were still in the United States. In this case, the 90-day rule would apply to the date you entered with a B-2 visa, not the date when you obtained an F-1 visa.
Do you have confidential questions about how your situation might affect your green card application? With Boundless, you get an independent immigration attorney who can help you understand your options. Learn more.
Two Paths to a Green Card
There are two different pathways for adjusting from international student to marriage green card holder. The application process depends on whether you are married to a U.S. citizen or to a green card holder.
Let’s discuss each path in more detail:
Option 1: Your spouse is a U.S. citizen
The first step is to submit these two forms:
- Form I-130 (“Petition for Alien Relative”) to establish the family relationship.
- Form I-485 (“Application to Register Permanent Residence or Adjust Status”). This is the green card application and must be filled out and signed by the F-1 visa applicant.
Avoiding the 90-day rule
The best way to avoid triggering the 90-day rule in this situation is to wait at least 90 days after last entering the United States before applying for a marriage-based green card (submitting forms I-130 and I-485 together or submitting Form I-485 separately). Form I-130 can be filed on its own at any time before or after the 90 days is up and will not trigger the 90-day rule — but again, it’s unusual to file these forms separately.
If you aren’t married already, it’s also generally a good idea to wait 90 days since your last entry to get married.
If you apply — that is, if you file Form I-485 — within 90 days of your last entry, the immigration officer evaluating your marriage-based green card application will presume “willful misrepresentation” — that is, they will likely suspect that you had intended to live permanently in the United States when you applied for a temporary student visa.
Proving that your plans changed
Overcoming the U.S. government’s presumption of “willful misrepresentation” can be difficult but not impossible. To prove that you did not misrepresent your original intention for obtaining an F-1 visa, you could provide documentation that a job or internship is waiting for you in your home country upon your return, for instance. See this article for other ways to demonstrate to the U.S. government that you have commitments and strong ties to your home country.
Boundless helps set you up for success by helping you prepare for your green card interview. Learn more.
Path 2: If you’re married to a green card holder
IMPORTANT UPDATE (March 24, 2023): The April 2023 Visa Bulletin saw a significant change to the F-2A family-based category (Spouses and Unmarried Children (Under Age 21) of U.S. Green Card Holders). Due to a growing backlog of cases in this category, the “Final Action Dates” for F-2A applications are no longer “current” for the first time in several years. *“Final Action Dates” refer to applications whose priority dates have reached the front of the line and can now be adjudicated. Although the “Final Action Dates” are no longer current, the “Dates for Filing” have remained current for the F-2A category, meaning spouses and unmarried children of U.S. green card holders can still file their green card applications for now. Despite still being able to file, these cases will NOT be adjudicated until the priority date is current. For Mexican applicants, the “Final Action Date” (or priority date) has retrogressed to November 1, 2018, and for all other applicants, the “Final Action Date” has retrogressed to September 8, 2020. This change is likely to significantly increase wait times for green cards under the F-2A category. Boundless will continue to track this development closely — stay tuned for future updates on our monthly Visa Bulletin report.
As the first step in this process, your spouse who is a green card holder must file the family sponsorship form, or Form I-130 (officially called the “Petition for Alien Relative”). Once Form I-130 is approved, you must wait to receive a visa number. (Only once your visa number becomes available will you be able to apply for a marriage-based green card. Visa numbers are immediately available to spouses of U.S. citizens but not to spouses of green card holders.)
The next step depends on whether your visa number becomes available before or after your F-1 visa expires:
If a visa number becomes available before your F-1 visa expires, you will be able to stay in the United States and follow the same green card application process for most other spouses living in the United States and married to a green card holder using Form I-485 (officially called the “Application to Register Permanent Residence or Adjust Status”).
Once your marriage-based green card application is approved, your physical green card will arrive, typically to months after USCIS originally received your Form I-130.
If a visa number will become available after your F-1 visa expires, you will need to leave the United States and follow the same green card application process for most other spouses living abroad and married to a green card holder using the online green card application, or Form DS-260 (officially called the “Immigrant Visa Electronic Application”).
After your marriage-based green card application is approved, you will typically receive your physical green card to months after USCIS originally received your Form I-130.
You must follow this process unless you can secure an extension of your F-1 visa or get a different type of temporary visa (such as a B-2 visitor visa) to stay legally in the United States, in which case you must follow the process for spouses living in the United States and married to a green card holder.
If your spouse is a green card holder and laterbecomes a U.S. citizen while you are waiting for a visa number, you can switch to the process described in Path 1 above.
Avoiding the 90-day rule
If you married a U.S. citizen (see “Path 1“), the best way to avoid triggering the 90-day rule is to wait at least 90 days after last entering the United States before applying for a marriage-based green card (submitting Form I-485 only).
If you aren’t married already, it’s also generally a good idea to wait 90 days since your last entry to get married.
If your visa number will not become available before your F-1 visa is set to expire, people often apply for an extension of their F-1 visa status — or apply for another type of visa — in order to continue residing legally in the United States while waiting for a green card.
Otherwise, you must leave the United States before your current visa expires and continue the marriage-based green card process from abroad.
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 visa.
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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