Student marrying an American: do you have to adjust status?

[alizon 77]

I have a Canadian friend who has been in the US for 5 years in a PhD program, and she is going to marry her American fiancé this summer. She's not interested in becoming a US permanent resident because she still plans to go home after she finishes the program or be sponsored by an employer, but I'm wondering if she needs to adjust her status anyway. Does anyone know if she can continue to enter and exit the country on her student visa once she is married or are they going to think she now has immigrant intent? Personally, I think she should adjust so she won't have to worry about CBP's discretion on her intent, but she just doesn't want to, so the only issue is whether she'll have trouble at the border or not.

Edited April 17, 2012 by alizon

[sulhaq 59]

Does your friend intend to live in the USA with her husband? If so, it is in her best interest to adjust status immediately after marriage (provided she did not enter the country on her student visa with the intent to marry). I don't foresee a big issue with entering/exiting the country if she already has a valid student visa, but it is certainly a possibility that she can be denied entry on basis of immigration intent if the immigration officer at the POE is unsatisfied with her answers. The probability for denial increases upon each successive exit and re-entry. Further, once her student visa expires, she will not be able to obtain another temporary visa as easily as before, because it again implies immigration intent.

Edited April 17, 2012 by sulhaq

[Harpa Timsah 13,258]

She does not have to adjust.

[alizon 77]

Does your friend intend to live in the USA with her husband? If so, it is in her best interest to adjust status immediately after marriage (provided she did not enter the country on her student visa with the intent to marry). I don't foresee a big issue with entering/exiting the country if she already has a valid student visa, but it is certainly a possibility that she can be denied entry on basis of immigration intent if the immigration officer at the POE is unsatisfied with her answers. The probability for denial increases upon each successive exit and re-entry. Further, once her student visa expires, she will not be able to obtain another temporary visa as easily as before, because it again implies immigration intent.

She still has 1-2 years left in the program, and I'm assuming that she won't have to renew her student visa during that time, but I don't know. If it were going to expire, I assume she would just adjust to permanent resident instead. She didn't originally enter with the intent to marry because she didn't meet her fiancé until she was already in school here, but she has been back and forth since they were engaged, and they weren't questioned on their relationship. I mean, it's Canada...she's been home multiple times a year every year that she's been in school here, so I don't think that the number of times that she has crossed before is an issue.

The way that our program works is that you usually have a job lined up months before your last year as a student is actually over. So based on her plan, she won't be out of status in the US because she's going to be on her student visa until she either 1. goes home to Canada to work, taking her American husband with her or 2. has an employer in the US to sponsor her.

She's not actually breaking any rules, as far as I know. I'm just worried that a CBP officer is going to think she is trying to break the rules and not let her come back to school after she goes home on vacation or something.

She does not have to adjust.

Okay, so she has no risk of being denied entry? I know there's never NO risk, but she's asking for my advice, and I don't want to accidentally get her stuck outside the US before she has finished her degree.

Edited April 17, 2012 by alizon

[Little_My 463]

There is always some dgeree of risk. A foreigner is never guaranteed entry to the US, not even when he/she has a greencard. F1 is a non-immigrant visa, and therefore entering with the F1 with immigrant intent is not allowed. Once she marries a US citizen, it is definitely a possibility that a CBP officer would assume she is intending to immigrate eventually and apply for AOS in the US, and might therefore deny entry. I had an American boyfriend who then turned into a fiance and then into a husband the entire time I was here under the F1 status, and not once was I asked about a US boyfriend/spouse when I re-entered the country using the F1. I think the chances of her being asked that are pretty slim, and there is absolutely no reason for ehr to volunteer that information when she is re-entering, unless she is directly asked about that.

If she is asked about that, then she does have to answer honestly, and it will be up to her to somehow convince the CBP officer that she is not planning to file for AOS. No one can sya whether or not she would be successful in doing so, and there is definitely a risk of her being denied entry.

If her F1 visa (or her I-20) was issued until the end of her program (you said 1-2 years from now), she won't have to renew her visa between now and graduating. If she is planning to find a US employer at the end of her studies though, I don't see why she wouldn't just adjust status and get the greencard, which would make her much more attractive to employers as they would not have to spend thousands of $$$ to sponsor her the H1-B. As a permanent resident, she can continue studying just as she is doign now, but she could also start working if she wanted to, and she wouldn't be bound by the F1 rules regarding full-time status and only on-campus employment. In my opinion, GC trumps H1-B, and if working in the US is in her plans, then she should just file for AOS and get it out of the way.

[alizon 77]

If she is planning to find a US employer at the end of her studies though, I don't see why she wouldn't just adjust status and get the greencard, which would make her much more attractive to employers as they would not have to spend thousands of $$$ to sponsor her the H1-B. As a permanent resident, she can continue studying just as she is doign now, but she could also start working if she wanted to, and she wouldn't be bound by the F1 rules regarding full-time status and only on-campus employment. In my opinion, GC trumps H1-B, and if working in the US is in her plans, then she should just file for AOS and get it out of the way.

I know, I've told her all that but she is just not interested. I think she is struggling a bit with the idea of living in the US for the rest of her life as well as convinced that getting employment sponsorship wouldn't be a big deal.

[VanessaTony 3,567]

I know, I've told her all that but she is just not interested. I think she is struggling a bit with the idea of living in the US for the rest of her life as well as convinced that getting employment sponsorship wouldn't be a big deal.

There is a CHANCE she will be denied entry and as she has time left on her course does she really want to risk being denied entry? Think of the impact! It will then take some time for her to re-enter the US to continue studying (as she waits for the immigrant visa) so she could really damage her studies.

The GC does NOT mean that she needs to live the rest of her life here in the US. It means that for NOW she wants to live here. She can continue to go home for bits at a time (of course there are residency requirements) but if at any stage she wants to return to Canada for good she just gives up the card.

In my personal opinion she either doesn't get married until she has secured a H1B visa (which is dual intent) or she does get married and adjusts her status. This means that she can remain with her (then) husband or visit home without fear of being denied entry and damaging her studies AND being separated from her husband.

Even the smallest chance of being denied is too big a chance given her studies (and her boyfriend) are here in the US.

[alizon 77]

There is a CHANCE she will be denied entry and as she has time left on her course does she really want to risk being denied entry? Think of the impact! It will then take some time for her to re-enter the US to continue studying (as she waits for the immigrant visa) so she could really damage her studies.

The GC does NOT mean that she needs to live the rest of her life here in the US. It means that for NOW she wants to live here. She can continue to go home for bits at a time (of course there are residency requirements) but if at any stage she wants to return to Canada for good she just gives up the card.

In my personal opinion she either doesn't get married until she has secured a H1B visa (which is dual intent) or she does get married and adjusts her status. This means that she can remain with her (then) husband or visit home without fear of being denied entry and damaging her studies AND being separated from her husband.

Even the smallest chance of being denied is too big a chance given her studies (and her boyfriend) are here in the US.

Thank you everyone. You have all confirmed my instincts that she is taking on more trouble than she realizes by being stubborn about not wanting have any kind of permanent status in the US. I've re-emphasized to her the risks of appearing to have immigrant intent as well as the VERY SERIOUS implications of misrepresenting her relationship to a CBP officer, and I think I might be starting to get through to her. I'll add that part about a GC not obligating her to live here forever, which might help her see she's not giving up her psychological attachment to Canada. I mean, my husband doesn't want to live here for the rest of his life with his green card either!

Thanks again!