F1 marriage to permanent resident

Asked over 5 years ago - California

Hi,
I am an F1 student from india married to a permanent resident. we gt married last yr in india. i m on my opt now and it will expire in aug. what are my options to stay here. my husband has not yet file for my permanent resident. I am trying for h1 jobs but its hard being a business undergraduate. can i just continue studying? please advise

Attorney answers (2)

  1. Stuart Jonas Reich

    Pro

    Contributor Level 19

    Answered . I would agree that you should speak with an immigration attorney before moving forward to determine your options and to ensure the there are no other factors unique to your situation which present special challenges.

    Generally speaking, both H-1B sponsorship (if you can secure such a position in this difficult economy) and continuing your studies would be viable options, assuming there are no problems which would prevent either. There may be other visa types applicable to specific situations, such as the J-1 Exchange Visitor visa or the H-3 Trainee visa. There may be other options depending upon your background.

    While it is possible for your permanent resident spouse to begin the green card process for you now, he will only be able to file the first stage for you - the Immigrant Visa Petition - which offers no protection with regard to immigration status in the U.S. or ability to work. It would be several years before you would be able to file the final stage, the Adjustment of Status (and then only if you maintained valid immigration status until then), which would offer an ability to remain in the U.S. and ability to work.

    Further, once your husband files for you to begin the green card case, you would most likely have trouble reentering the U.S. on your F-1 status: the F-1 requires "nonimmigrant intent" - the intent to remain in the U.S. only temporarily and then return home at the end of your authorized period of stay (for an F-1 student visa, the consulate won't actually require a domicile as with a B-1/B-2 - just the intent to return at the end of the educational program). Being married to a permanent resident already makes such an intent to leave the U.S. at the end of questionable from the perspective of U.S. immigration, and having an Immigrant Visa Petition on file makes it far more so.

    If your husband eventually gets citizenship status through naturalization, your green card case would be quicker and more straightforward - but he should also speak with a lawyer to determine eligibility for a naturalization case.

    Again, it would be worthwhile for you both to sit down with an attorney for a cconsultation.

    Good luck!

  2. Philip Alan Eichorn

    Contributor Level 19

    Answered . Initially, your husband should not file a petition for you until he becomes a citizen. While you await his naturalization, you should pursue either an H-1B (that would allow for dual intent) or further your education (you must maintain an unrelinquished domicile in your native country). The issue in your case is when did your intent to remain in the U.S. change.

    Please consult with an immigration attorney prior to engaging in any course of action; whether it be with CIS or otherwise. Attorneys who practice immigration law are practicing federal law and therefore you can hire an attorney from anywhere in the country (as long as he/she is licensed).

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