Green Cards for Students

Spring is a busy time of the year for our office. In part because it coincides with graduation. And for this reason, I get lots of calls and questions from foreign students earning their degrees at US Universities, who have fallen in love with a US citizen and wish to get married and stay and work in the US. The good news is that in most cases, the student can get married, stay and apply for an Adjustment of Status to become a US Legal Permanent Resident.

Students typically enter the United Sates on either a J-1 Exchange Visa or an F-1 Student Visa. There are a few alternative procedures that a student can choose from depending on the type of visa originally granted to the student.

F-1 Visa

F-1 Visas are issued to students who wish to enter the United States to study at the high school level, college, conservatories and language schools. F-1 Visas are generally valid for the time period of study, including a brief grace period after the completion of the student’s course of study. Students on an F1 Visa can marry while in school and apply for their Legal Permanent Residency. Once issued, the student can live and work in the US without issue.

J-1 Visas

J-1 Visas are issued to Exchange Visitors who are participating in a J Exchange program pre-approved by the US State Department.

Most J Visas do not contain any restrictions which would delay or make adjusting status after getting married to a US citizen difficult. However, some classes of J-1 Visas contain a two year residency requirement. This means that after the completion of the student’s studies, the student whether married or not, must return to his or her home country for at least two years before he or she may obtain an adjustment of status based on their marriage to a US citizen or permanent resident. This residency restriction can be waived under certain circumstances.

There are five statutory bases that a J-1 Visa holder may use to waive the two year foreign residency requirement. Those five bases are as follows:

No objection letter
Extreme Hardship for the US Citizen spouse or child
Threat of persecution
Interested Government Agency Request (IGA)
Designated State Health Agency Request (for Physicians only)

Notwithstanding the above exceptions, getting a waiver is not an easy process, nor a sure thing. Its best to consult with legal counsel who can assist you in the process.

Regardless of which type of student visa may apply, the foreign student can always get married and voluntarily return home and then apply for a CR1/IR1 Marriage Visa. This process generally takes about 12-14 months. In the case of a J-1 Visa holder subject to the two year residency requirement, who does not successfully obtain a waiver, the two year residency requirement would still apply. Thus delaying their return by about another 10 months.

If you have questions about the Adjustment of Status process for a student on an F1 or J1 Student Visa, you are welcome to call me anytime toll free at 1-888-515-3529.

Attorney Jeff Pettys