What to do if I have an F1 on OPT and plan to marry a married to green card holder?

UPDATED: Sep 14, 2011

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What to do if I have an F1 on OPT and plan to marry a married to green card holder?

I am on F1 and on OPT right now. My fiance has a green card. We will be married in 3 months. As I did my research and get to know that she needs for an to file I 130 first and then I 485 for me. My questions are: 1) How much time will it take for me to get GC? 2) I can get an opt extension up to 10 months from now; if I could not get GC by then what should I do to be in US legally? 3) I know one option is to file H1b from my employer; can I go back to F1 and do some more study after OPT ends? 4) In the wait time can I go back to my country and come back without any problem? Should I speak with an immigration law attorney? In Dallas County, TX.

Asked on September 14, 2011 under Immigration Law, Texas


SB, Member, California / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You are correct in that your future wife will need to submit a I-130 petition on your behalf.  However, since she is only a green card holder and not a US citizen, she cannot confer any immediate immigration benefits on you.  You will need to have the I-130 approved and then wait until a visa number becomes available for the family based preference under which the I-130 will be filed (F2A) or until your wife can become a US citizen (whichever happens first).  Only then will you be eligible to apply for your I-485.

Until that time, you will need to remain in lawful status in the US.  That means that if you are now in F-1 status, you will need to probably have your employer petition for your H-1B visa on the basis of your job to ensure that you maintain lawful status.  Another option is, as you indicate yourself, to continue your studies, such as a graduate program or post-graduate, whatever the case may be.  You will NOT be permitted to reenter as a F-1 once your wife petitions for you, as the filing of that petition indicates immigrant intent and you are not permitted to have immigrant intent as a F-1 student.  However, if you change status to H-1B, that is a dual intent status and that will permit you to travel internationally while you wait to be eligible to file I-485.

You should discuss your situation with an immigration attorney if you have any additional specific questions.  Good luck to you.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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