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I'm an F1 visa student married to a US citizen. Should I apply for OPT or permanent residency?

San Diego, CA |

I've been F1 for years now and my wife (US citizen) and I entered the country last year and got married after that. Our intention was to eventually move back to my home country after I finish OPT. Now, I'm graduating soon and we are thinking that I should apply for permanent residency to avoid international student fees in the future if I further continue to a higher degree or if I need to work beyond OPT. I'm concerned because I've heard it is difficult to prove that my intention as F1 was not PR when I entered the country last time, even if we are being very honest about this. How do you feel I should proceed: Applying for OPT and trying for permanent residency next year, hiring an attorney and applying for permanent residency now, or applying for both now. Thank you.

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Attorney answers 4

Posted

I don't see any problem with your filing your adjustment of status based on your USC wife's petition on your behalf. USCIS will look at your last entry into the U.S. in determining your intent. Since you entry was last year, USCIS would have to prove that you actually intended to enter and file for permanent residency. There is no longer a presumption of fraud since you've been in the U.S. for so long. The green card process will likely be about 4 months. You can also apply for an employment authorization document as part of the green card process. I would consult with an attorney and go for the green card. I've done many, many adjustments for those in F-1 status and all have been successful. Good luck.

Leonard J. D’Arrigo | Whiteman Osterman & Hanna LLP
Associate
One Commerce Plaza | Albany | New York | 12260
| o | 518.487.7642 | f | 518.487.7777
| e | ldarrigo@woh.com | w | www.woh.com

Posted

Your best route is to apply for a green card. If you continue to be in student status, it will be very difficult for you to convince the government that you lack the intent to live permanently in the U.S. since you are married to a permanent resident.

Posted

I've handled many F-1 to Green Card cases, and generally they are very smooth cases. Permanent residency can meet both of your goals--give you the right to work, as well as alleviate the very high cost of getting an education. Moreover, should you and your wife decide to remain permanently in the United States, you will have the right to do so.

One caveat, or warning, however. If you do decide to return to your home country to live after obtaining permanent residency, you would lose your green card, although your wife could re-petition you likely with no issues if you decided to return to the U.S. to live. I've often counseled couples who want to reside in both countries, or where the immigrant desires to work in the home country. Remember, USCIS can find an abandonment of permanent residency, or the green card, where the immigrant has been out of the U.S. for more than one year at a time. USCIS can also find an abandonment when upon looking at the overall trip history, it is clear that the immigrant is permanently residing abroad and visiting here to try to "keep" the green card.

Posted

I agree that permanent residency is best as your marriage indicates immigrant intent. It is not clear from your facts whether you are going to immediately move out of the U.S. when you graduate. If so it may make sense to postpone the permanent residency application.

Need more facts to advise properly.


Lynne R. Feldman, Attorney at Law
Concentrating in Immigration and Nationality Law
2221 Camino Del Rio South, Suite 201
San Diego, CA 92108
phone: (619) 299-9600, facsimile: (619) 923-3277
email: lynne@feldmanfeldman.com
website: www.immigrateme.com

Formerly Adjunct Professor -- Immigration law
University of Illinois College of Law