The H-1B and F-1 non-immigrant visas are both in high demand. The first visa allows foreign nationals to work in the US for up to six years, and the second visa allows students to study at a US college or university. Since both of these visas typically last for multiple years, though, it sometimes happens that the visa holder finds love while they’re in the US. If they want to marry a US citizen or green card holder, they’ll have to apply for a USCIS marriage green card. This is a fairly lengthy process, and requires plenty of effort and patience. However, what some people want to know is this: what are the differences between an H-1B visa and an F-1 visa, and how do those differences affect the application for a marriage-based green card?
The main differences between the H-1B visa and the F-1 visa
These are two very different visas, but they can both allow the holders to apply for marriage-based green cards. This is how they compare to each other.
Visa duration
The H-1B visa is good for three years, and can be extended for another three years.
The F-1 visa’s duration will depend on how long the holder’s academic studies will take, assuming a full-time student workload each semester. F-1 holders can also join the Optional Practical Training (OPT) program, which makes them eligible to work in the US and is valid for one year. This can be extended by another 17 months by those in STEM fields of study.
Applicant’s intent
The H-1B visa is a dual-intent visa. Even though it’s technically a non-immigrant visa, it also makes the holder eligible to apply for a green card through an employer (with or without marrying a US citizen or green card holder).
The F-1 visa is a non-immigrant visa, and holders aren’t eligible to apply for a green card unless they’re married to a US citizen or green card holder. Because this visa is for people who are temporarily in the US to study, the USCIS takes extra steps to establish that applicants intend to return home after their studies are completed.
Sponsored or not
The H-1B visa can only be obtained if a US company will sponsor the applicant, and agree to pay some of the associated fees. The potential employer also has to file the visa applications on behalf of the employee.
The F-1 visa can’t be sponsored by a school, an individual, or any other entity or person. This visa is granted based on merit, and provided the student has successfully applied to a US college or university.
Permission to work
The H-1B visa is specifically meant for foreign nationals who wish to work for US companies, so having permission to work in the US with this visa is a given.
The F-1 visa is for students, so it can’t be used to get a job from any US company they choose. However, this doesn’t mean that students are forbidden from working at all. If they get previous permission from the school’s International Office, as well as from the Department of Homeland Security, they can work for up to 20 hours a week – but only during active school sessions, and only on-campus. This permission also allows them to work up to 40 hours a week between semesters. Being a part of the OPT program also allows the student to get a job in the US.
Changes in employment status
The H-1B visa is dependent on the sponsorship of the employer, so if the visa holder’s job is terminated for any reason, they’ll lose their visa status and be required to leave the country after their grace period is over. It’s possible for H-1B holders to change jobs however many times they want, but they’ll have to find a new sponsoring employer each time, and this can’t be done in response to losing their previous position.
The F-1 visa doesn’t require students to work. Those who are part of the OPT program can switch jobs whenever they want, and the transfer process will be much simpler compared to that of the H-1B.
How do these differences affect the marriage-based green card application process?
The main thing to be aware of for both visas is what might happen if the holder has to unexpectedly leave the US while waiting for their green card to be approved. For an H-1B visa holder, it could be that they’re suddenly laid off, and have no other choice but to return to their home country. In this case, they could try to return with another visa; there are usually options besides just waiting out the situation in separate countries.
For an F-1 visa holder, there’s a much smaller risk of having to suddenly leave the US. The end date on their visa has to be respected, though. Since getting a marriage-based green card can take up to a few years in some cases, their F-1 visa could expire before the green card is approved. To prevent their visa status from lapsing, they can get an extension on their F-1 visa, or apply for another type of visa. If a Form I-131 was filed to request advance parole with the I-485, the F-1 visa holder can travel abroad without having their I-485 abandoned. If an H-1B visa holder needs to travel abroad while their I-485 is pending, the do not have to wait for their I-131 to be approved as long as they have a valid H-1B visa sticker in their passport.
If the application for a marriage-based green card is made early enough, there may not be any issues with looming expiration dates on non-immigrant visas. However, in the case of the F-1 visa, it’s important not to make the opposite mistake and apply too early. If F-1 visa holders apply for a marriage-based green card in the first 90 days that they spend in the US, they could set off alarm bells at the USCIS, and risk losing their visa status and their ability to return to the US.
Another consideration that couples should take into account is the visa holder’s employment status. While this won’t be an issue for H-1B visa holders, F-1 visa holders might find that their inability to find quality full-time employment puts a strain on the relationship. This shouldn’t be a dealbreaker by any means, but it’s certainly something to consider along with the other long-term visa plans.
