Can I stay in the US while my documents are processing if my F-1 visa expired but my I-20 is still valid and I’ll be marrying a permanent resident?

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Can I stay in the US while my documents are processing if my F-1 visa expired but my I-20 is still valid and I’ll be marrying a permanent resident?

I came to the US 4 years ago on an F-1 Visa. I will be graduating this Fall with my bachelor’s. My visa expired about 3 weeks ago, however, my I-20 form is still valid for another 8 months. I plan on getting married to my fiance in 2 months. She’s been a legal permanent resident for approximately 10 years. I was told that I’d have to go back to my country while my documents are processing. Is there any way that I can remain in the US and obtain a work permit while my papers are processed? My fiance is eligible for her citizenship.

Asked on June 21, 2012 under Immigration Law, New York

Answers:

SB, Member, California / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You wont be eligible for a work permit if she files as a permanent resident since that's a preference based petition nad there are no visas currently available.  As such, she cannot confer any immediate immigration benefits upon you, including the work permit.  However, if she is eligible for naturalization, she should apply, get her citizenship and then petition for you.  That way you can concurrently file for your green card on the basis of marriage to a US citizen and then be eligible for the work permit.


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