I am going to marry a foreigner that is currently in the USA…

Thanks for your answer. I still have a couple of doubts about your answer.

You Said: One way to interpret your answer is that only the filing of the I-130 petition triggers the invalidation of the student status, not the actual marriage ceremony. Is that really the case? YES, THIS IS THE CASE. Thank about this for just a moment, simply from the common sense side, not just the law. IF you could not get married on an F-1 Visa, then an F-1 Visa student would not be able to bring wives with them. Yet we have a spousal and family member F Visa. There is nothing about the marriage itself that would invalidate your visa.

You are quoting: Can you provide some USCIS sources where we can read more about this? Other sources seem to imply that it is the marriage what triggers this invalidation: "A student visa is no longer valid once you get married and could be considered fraudulent even if you are only *planning* to marry." http://immigration.about.com/cs/immigrationhowtos/ht/htstudent2spous.htm

The quoted website is an unsubstantiated web site. This information is not consistent with current law. The reason is, that the author is relating this to the issue of intention. Under the immigration law, an F-1 Student may not enter the U.S. with the intention of immigrating. Getting married could be seen by some as an intention to immigrate, since marriage is one path to immigration. However, as I said before, there is nothing to prohibit a student from entering the U.S. as a student, meeting someone, falling in love, and getting married. Marriage is not on the list of prohibited activities for F-1 students. Now, if you attempted to gain entry to the U.S. in order to marry someone for immigration, and were denied, then as a result you started shopping for entry visas; then you discovered the F-1 Visa, and entered for the express purpose of getting married, that would violate the intention conditions of entry. In those circumstances, your visa shopping activities would have been observed and noted by the INS, and the validity of your entry could be questioned. Other visas have the same limitations. A person entering on a Visitor visa may not enter with the intention of immigrating. Upon entry, if an INS officer notices real estate magazines and a newspaper with jobs circled, he would question the visitors intentions as an intention to immigrate, and deny him entry. It has to do with intention. You entered with the intention of attending school. You did not know you were going to meet someone, fall in love, and get married. You could marry someone with the intention of taking them back to your home land. The author of your reference, from the context of his and a couple of others, are taking the position and making the assumption, that everyone who gets married files for immigration. However, I have clients who have taken their U.S. citizen spouses to Ireland, Canada, Mexico, UK, and Switzerland. They had not intention of immigrating to the U.S. It is the filing of the I-130 that signals an intention to immigrate, and you would loose your student status. It would not be fraudulent, unless it is proven that the relationship existed before the student status and that you came here to otherwise get married (i.e. if you had a denied fiance visa first).

You ASK: One other thing is that you seem to imply that the decision to change the status from student to resident is something that we can wage based on costs and benefits (e.g not paying some taxes). Does that mean that it is actually a choice for a foreigner who is married to a U.S. citizen to adjust his/her status? ANSWER: There is nothing in the U.S. Law, and in fact, even though you were not a citizen, it would be against our constitution to force someone to become a U.S. permanent resident or citizen. Even after world war II, the U.S. based German POW's were give a choice to stay or go. You can make your choice based on finances or a genuine desire. As an F-1 student, and working on one of the training programs, you do not pay SS or MC taxes as long as you do not have more than 5 years of physical presence (in any status added together, does not have to be concurrent). In addition, for tax purposes, your spouse could claim you on the taxes as a dependent or you could file a joint return. Remember, as soon as you file the I-130, you signal an intent to immigrate, and would loose the F-1 status and would then be subject to withholding. It is a choice.

You ASk: If already married, would it not be seen as fraudulent for that foreigner to go out of the U.S. and state when re-entering that he/she is "single" and that his intention for entering the U.S. is to study (if on F1) when in fact he could/should be seen to be entering the country as the spouse of a citizen? I do not recall stating this in my answer. I would never have told you to represent yourself as single. It would be fraudulent, if someone were to be married to a U.S. Citizen, and enter the country stating they were single. It would mean they uttered a false statement for immigration purposes. Intention is a funny thing. Let's say your U.S. Citizen spouse were residing with you in your home land. You get accepted to school in the U.S. pay your annual tuition up front, and get an I-20 from the school. You now enter the U.S. with or without your spouse. The immigration may question that you are married to a U.S. Citizen and your intention. It would mean that you have to show that you are permanently residing in the homeland, and your intention is merely for study and to return. You may be questioned, but not necessarily denied entry. IN this situation, I would recommend carrying proof of residency such as joint bank accounts, property deeds an leases, etc to show that you have permanent assets in the homeland. There is nothing to say that you cannot enter the U.S. as the spouse of a citizen and not have permanent residence. Permanent residence cannot be forced. There are thousands of international families. People own homes in two countries at once and spouses are citizens and not permanent residents of each other's countries, for variety of reasons, mostly economic. They just have to watch how they answer questions with immigration and make sure they do not overstay their I-94's.

The biggest hot spot right now is Canada. So called snow birds have U.S.Citizen spouses. The boarder agents ask them lots more questions than other travelers and often are given to asking them why they don't become residents. But ,they are allowed to enter and not denied.

You State: In essence, we are concerned that when the moment comes to start the green card process, these technicalities might become serious issues. Response: You should have no problems. Just know that at the moment that the I-130 is submitted, you will eventually have the F-1 visa withdrawn. This is why, just to make sure no one questions your intentions, to time it at about the end of the school year, and submit all documents concurrently. This is because if you loose the F-1 status, then you will not be able to continue in school right away. However, once you file the I-130 concurrently with the work permits and I-131, and I-485, you will still be able to continue school under the color of law as if you were a permanent resident. Also, if the school does not withdraw the I-20, you will still be able to continue as a student. You may want to submit your own letter withdrawing your student visa immediately after filing the I-130 (wait one week).

You ASK: Finally, I understand that sometimes, these adjustments of status need to take place outside of the U.S., but are you suggesting that the person requesting the adjustment of status will need to exit the country after filing I-130 and wait abroad until the final decision? That seems a bit odd. In some cases, the adjustment is done here in the U.S. but the person has to go to his own country to finalize the process... is that what you mean? ANSWER: The person filing the I-130 is the citizen spouse. The person filing the I-131, I-765, and I-485 is the alien spouse. All documents are filed together at one time. On the I-131, the citizen spouse can indicate where the adjustment of status is to be filed. The citizen spouse should indicate the processing center servicing their geographical location. When the I-130 is approved, the USCIS (Home Land Security), may indicate that the Alien spouse has to get processed at an embassy outside the U.S. This would be done, if in their determination, because of your particular circumstances, you could not adjust status while in the U.S. This would mean the alien spouse would receive the approved I-130 with a set of instructions and a packet to report to an embassy to process your green card. I added this in because as an F-1 Student, you are not generally allowed to change status to permanent residence. While some students have been allowed, some others have had to depart to reenter. It depends on your circumstances and things that you or I probably do not even know about. Some of the decisions by the USCIS are a result of total discretion of the investigating or case processing officer.

YOU ASK: I am also not clear if you mean "invalidated" instead of "denied" when you say that "If she is converting to permanent residence, or you have filed an I-130 for her, she will be denied an F-1 Visa" (In this case we are talking about a person who is already here in the U.S. on student status (F1) valid for five more years). ANSWER: I apologize for the confusion. I really mean withdrawn if she is in the U.S. If she is trying to enter the U.S. and an I-130 is filed, it would be denied.

I am sorry, but I have already spent 3 hours crafting this answer. You can research the laws to subtantiate what I said at the USCIS web site:

http://www.uscis.gov

Cear Cris,

good luck.