Coming to the United States to get an education is exciting. However, a myriad of requirements and regulations apply to F-1 student visa holders. Violation of even one of these—for example, working off campus without authorization, or failing to pursue a full-time course of studies—can result in the F-1 student falling “out of status.”
Someone who was not in valid visa status is expected to leave the United States right away. However, it is possible that this person will gain the theoretical right to a green card, such as by marrying a U.S. citizen or receiving a job offer from a U.S. employer. The issue then becomes whether having fallen out of status will impact the student’s ability to get a green card (U.S. lawful permanent residence).
The answer to this depends on the basis for the green card eligibility, how long the student has remained in the United States out of status, and whether an immigration judge has actually ruled that the student is unlawfully present in the United States.
We’ll give you a brief rundown on some of the important points below. But because this is a complicated area of the law, you would be wise to consult an immigration attorney for a personal analysis.
U.S. immigration laws provide limited ways for a person to get a green card. The most commonly used ones include asylum (for people who fear persecution in their home country), family reunification (for close relatives of U.S. citizens and permanent residents), and employment (in most cases, conditioned on the U.S. employer being unable to find U.S. workers who are qualified, willing, and able to take the job).
The reason that your basis for green card eligibility is important is that it partially determines whether you are eligible to use a procedure called “Adjustment of Status” (AOS) in order to get the green card. The AOS procedure allows you to file your application, attend an interview, and receive a decision on your green card without leaving the United States—and in some cases, without regard to whether you were out of status.
Immediate relatives of U.S. citizens (spouses, parents, and unmarried children under 21) who entered the U.S. legally (as you did with the F-1 visa), for example, can apply for a green card using the Adjustment of Status procedure regardless of whether they’re out of status when they apply.
People granted asylum can also adjust status, even if they entered the U.S. illegally or spent time out of status.
Employment-based applicants who have spent no more than 180 days out of status in the U.S. are eligible for AOS.
Most other people, however, cannot use AOS, but must instead apply for their green card using a process called consular processing. That involves attending their visa (green card) interview at a U.S. embassy or consulate in their home country. And that can create problems, as described next.
Let’s say that you are, in theory, eligible for a green card, but not to adjust status (use the AOS procedure) in the United States.
If you were to apply for the green card through consular processing, one of the issues at your visa interview would be how much time you had spent in the United States unlawfully while you were 18 or older. This is a separate issue from being out of status. Unlawful presence normally means having stayed past the expiration date of your permitted stay, as shown on your Form I-94 Arrival/Departure Record.
People who have spent more than 180 days in the U.S. unlawfully (and then departed voluntarily) can be found inadmissible and barred from returning for three years. If the period of unlawful presence is 365 days or more, the person can be barred from returning for ten years.
A waiver is available to some applicants, and in some cases can be applied for before leaving the U.S., but its approval is anything but guaranteed. The bottom line is that it's possible you could leave the U.S. and arrive at your visa interview at the U.S. consulate only to be told, “Although almost everything looks fine with regard to your green card application, we must tell you that, due to your unlawful U.S. presence, you’re not actually allowed to enter the U.S. for the next ten years.”
How long you’ve been unlawfully present in the U.S. is, however, a complicated matter for F-1 students. Because you were admitted for D/S (duration of status), without an actual departure date indicated on your I-94, your unlawful presence begins to accrue only when USCIS or an immigration judge issues a formal determination saying you’re in violation of your status. This could happen if, for example, you applied to change status, or were placed in immigration court proceedings. (If you’ve been in court proceedings and been ordered deported, however, you definitely aren’t eligible for a green card anytime soon, and should talk to an attorney.) The Trump Administration has been trying to create a harsher rule for students, but the matter is tied up in litigation (as of mid-2019).
As you can see from this discussion, it might not be possible to determine on your own whether you are eligible for a green card or to adjust status, or whether you’ll have inadmissibility trouble based on unlawful presence in the United States. Get help from an experienced immigration attorney if you believe you have any basis on which to claim a U.S. green card.