Can an Out of Status F-1 Visa Student Get a Green Card?

Coming to the United States to get an education is exciting. However, a myriad of regulations apply to F-1 student visa holders. Someone who violates even one rule—who, for example, works off campus without authorization or fails to pursue a full-time course of studies—can fall "out of status," and face consequences.

A person who is 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 being an out-of-status student will impact the ability to get a green card (U.S. lawful permanent residence).

The answer 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 here.

First, Are You Eligible for a U.S. Green Card?

U.S. immigration law provides 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, mainly husbands or wives, parents, and children of U.S. citizens and lawful permanent residents), and employment (in most cases, conditioned on a job offer from a U.S. employer who is willing to offer sponsorship and take on the task of proving that it couldn't find U.S. workers who were qualified, willing, and able to take the job).

People who come to the U.S. on student visas do increase their chances of qualifying, however, because during their time in the U.S., they might get engaged to a U.S. citizen or receive a job offer from a U.S. employer.

If Eligible for a Green Card, Can You Apply for It Without Leaving the U.S.?

Your basis for green card eligibility is important, in that it partially determines whether you are eligible to use a procedure called "Adjustment of Status" (AOS) in order to apply. The AOS procedure allows you to file your green card application, attend an in-person interview, and receive a decision all without leaving the United States—and in some cases, without regard to whether you were out of status in the first place, which can be hugely beneficial.

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 here 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.

If You Can't Adjust Status, Are You Inadmissible Due to Unlawful Presence in the U.S.?

Let's say that you are, in theory, eligible for a green card, but not to adjust status in the United States. You will need to apply for the green card through what's called consular processing, in your home country.

A problem could arise at your visa interview, however. One of the issues the consular officer will ask about will be how much time you spent in the United States unlawfully while age 18 or older. This is a separate issue from simply 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. (Your record will probably say "D/S" instead of a date, however, as discussed below.)

People who have spent more than 180 days in the U.S. unlawfully and then departed voluntarily can be found inadmissible and therefore 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. (See Understanding the Three and Ten-Year Bars for Unlawful Presence.)

A waiver (legal forgiveness) is available to some applicants (by submitting Form I-601 or I-601A and supporting documents), and in some cases can be applied for before leaving the U.S., but its approval is anything but guaranteed. The bottom line is, it's possible you could leave the U.S. and arrive at your visa interview at the U.S. consulate only to be told, "Almost everything looks fine with regard to your green card application, but 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, as alluded to above, a complicated matter for F-1 students. Because you were likely 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.

Get Advice From a Lawyer Experienced in Immigration Matters

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 past 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. And, if you've been in court proceedings and been ordered deported, you definitely aren't eligible for a green card anytime soon, and should talk to an attorney.