The J-1 visa is a widely used nonimmigrant visa. To come to the U.S. to work and study, many foreigners will use J-1 temporary visa that encourages foreign nationals to come to the U.S. to learn and gain skills and return to their home country.
A J-1 visa holder can marry a U.S. citizen, but it doesn’t qualify a foreigner for permanent resident status (green card) right away.
If you hold a J-1 exchange visitors visa and have recently married a U.S. citizen or a green card holder, you can apply for a marriage based green card. But, it’s essential to understand how the rules of your J-1 visa will affect when you can begin the green card application process. Also, it is necessary to understand whether you can apply from within the United States (adjust status to permanent resident ) or you must leave the U.S. and apply from abroad through consular processing.
How To: From J-1 Visa to Permanent Residence
Many J-1 visa holders want to go from the temporary visa to living permanently in the U.S. through a green card. Getting a marriage based green card is an option, but there is more to getting a green card while you are on J-1 visa than simply marrying.
First of all, to get the marriage-based green card, J-1 visa holders must overcome a few obstacles or get the waiver, such as the foreign residency requirement before a J-1 holder marries a U.S. citizen and can seek permanent residence.
As the spouse of a U.S. citizen, you will be filing as an immediate relative of a U.S. citizen or permanent resident. Here we will talk about the process from J-1 visa to the marriage based green card and help you prepare for your journey toward permanent residence and, ultimately, U.S. citizenship.
Remember: Not all green card seekers have the same situation, and your steps can vary from other people’s experience. Herman Legal Group law firm can help you get your desired visa status and provide best legal advice according to your case.
Am I Eligible for a Marriage-Based Green Card?
When you think of eligibility criteria for a marriage-based green card, the first thing is to determine whether the two-year “foreign residency requirement” applies to you.
The home residency requirement means that a J-1 visa holder (and dependents on J-2 visa, if any) must return to their home country for a cumulative period of two years after they complete their exchange visitor program.
During these two years, J-1 visa holders may travel to, and from the U.S., but they can start the green card application process only after fulfilling this home residency requirement.
Also, in general, they must apply from abroad, and not from within the U.S.
The aim of the home residency requirement is to benefit the exchange visitor’s home country by applying the skills and experience they acquired in the U.S.
After getting the green card, you are no longer in need to apply for an employment authorization document because your green card will provide employers with what they need to hire you.
How to Meet Physical Presence Requirement – J-1 Waiver Marriage?
Fortunately, there are ways to bypass home country physical presence requirement with a waiver.
A waiver will allow you to simultaneously stay in the country and file an adjustment of status application to get a green card (permanent residency).
Here are some of the bases for obtaining this waiver:
- Get a “no-objection statement” from your home country’s government.
- Explain that your sponsoring spouse (U.S. citizen or legal permanent resident/ a green card holder) or child would face exceptional hardship if you get the denial of your green card and are forced to return to your home country.
- Prove that you would face persecution by returning to your home country.
Note that you will not be permitted to extend your J-1 status beyond the end date listed on your DS-2019.
If the Department of State denied your request for a waiver and you haven’t passed the date listed on your DS-2019, then your best option may be to apply for an extension. However, we highly advise you to contact your immigration attorney to help you determine what is the best solution for your case.
How to Check If The Two-Year Home Residency Requirement Applies To You?
Step 1: Check your visa
Take your passport and look at the affixed document- your visa. There, toward the bottom of it, you will see a note that indicates whether or not you’re subject to the requirement:
- You are required if you see: “BEARER IS SUBJECT TO INA(212)E. TWO-YEAR RULE DOES APPLY.” (This refers to the specific section of the Immigration and Nationality Act creating the requirement.)
- You are not required if you see: “NOT SUBJECT TO TWO-YEAR RESIDENCY REQUIREMENT.”
IMPORTANT: You will not see this indication in all J-1 visas. If there isn’t such a note, try other following methods instead.
2. Check your Form DS-2019
Form DS-2019 (officially called the “Certificate of Eligibility for Exchange Visitor (J-1) Status”) should indicate whether the requirement applies to you. J-1 holders receive this form from the program sponsor before applying for a J-1 visa. So if you can’t locate your Form DS-2019, you can contact your program sponsor and ask for it.
3. Request a formal determination
You can always ask the U.S. Department of State’s Waiver Review Division to issue an official “Advisory Opinion.” With this opinion, the immigration officers can state whether the home residency requirement applies to you. This government agency will review your request based on your J-1 program records and mail you a written determination. You can expect to receive this advisory opinion within four to six weeks after the government agency receives your request.
4. Apply the rules
Generally, the home residency requirement will apply to you if any of the following is true in your case:
- The U.S. government entirely or partly funds your J-1 program, your home country’s government, or an international organization that receives funding from either of these governments.
- The skills you acquire through your J-1 program are needed to improve your home country (see the U.S. State Department’s complete list of skills by country).
- You are receiving graduate medical education or training, such as a fellowship or residency, through your J-1 program.
What If I’m not Subject to the 2-Year Residency Requirement?
If your J-1 visa did not come with the home presence requirement, you would be able to file the application paperwork to adjust your status immediately upon marrying a U.S. citizen.
Expect to submit all your fees and documents, including the I-485, by mail to U.S. Citizenship and Immigration Services (USCIS).
However, before submitting your paperwork, make sure that the 90-day rule will not affect you.
If you have a pending Form I-485 and you leave the U.S. without an advance parole document, USCIS will assume that you have abandoned your application.
What If Foreign Residence Requirement Applies to Me?
If you follow the steps we mentioned above and determine that the foreign residence requirement applies to you, the next step toward obtaining a marriage-based green card is to get a waiver.
The waiver will allow you to stay and complete the green card application process without leaving the U.S.
How to Waive the Foreign Residence Requirement?
To obtain a waiver, you must qualify for it by doing one of the four following actions:
- File “No Objection Statement” issued by your home country’s embassy in Washington, D.C. This letter states that your government allows you to pursue U.S. permanent residence.
- Demonstrate exceptional hardship to your U.S. citizen or a green card holder spouse or child
- Prove that you fear racial, religious, or political persecution in your home country.
- Get the support from a U.S. government agency that wants to hire you
If you are an exchange visitor receiving medical education or training, you cannot use options No.1, but you can get the support from a designated State Public Health Department.
Step By Step To Getting The Waiver
Step 1: File the Form DS-3035
The J Visa Waiver Online service is available on the State Department’s website. Here, you can complete your Form DS-3035, “J Visa Waiver Recommendation Application.
After submitting the form, you will receive a case number, and you can prin your filed Form DS-3035 with a unique barcode.
Step 2. Print and mail
Upon filing the form through the State Department, you must print and mail completed Form DS-3035 to the appropriate State Department address. If you are unsure where it should be mailed, you can find the complete list on the agency’s website.
Also, you should prepare the following supporting documents:
- Copies of all forms of DS-2019 and IAP-66 (the DS-2019’s predecessor) that you have ever received
- Two self-addressed, stamped legal-size envelopes
- Prove of paid application processing fee. Currently, the fee is $120, and this sum is not refundable; you can pay it by check or money order made out to the U.S. Department of State.
Upon your payment, the State Department official in St. Louis, Missouri, will process it and pass your application to the Waiver Review Division in Washington, D.C.
Step 3: File Supporting Documents
In addition to the forms listed in the previous steps, you should prepare and submit the related supporting documents. Some of those we already mentioned include the no Objection Statement that you should mail to the State Department (find specific instructions for each supporting document and the appropriate mailing address on the agency’s website).
You will pay an additional filing fee for processing a supporting document (Form I-612, the “Application for Waiver of the Foreign Residence Requirement”) based on exceptional hardship to a spouse or child.
#The processing time
For each supporting document, U.S. government agencies have different processing time they need. Immigration officers can take one to four months, but it can sometimes take longer.
Also, you can expect the State Department to request additional information, which will add more time to the process.
Step 4: Check your waiver request status
After one month, you can visit the J Visa Waiver Online website to check the status of your request. But, according to the processing time we mentioned earlier, your waiver request will not necessarily be approved by then.
If you obtain the approval of your waiver request, you will no longer be subject to the two-year home residency requirement. This also means that you can proceed with applying for your marriage-based green card through your U.S. citizen or permanent resident spouse without leaving the U.S.
Purpose of the Foreign Presence Requirement
The J-1 visa is not a “dual intent” visa. You cannot demonstrate your intention to get a green card when applying. Otherwise, you can get into trouble if you are not cautious when pursuing a green card while on J-1 status.
The home residency requirement is a motivation that USCIS uses to encourage J-1 holders to make their stay in the U.S. temporary.
J-1 visa holders must return for at least two years after their J-1 visa validity period is expired and be physically present in the home country for this time before being able to apply or petition for immigrant or nonimmigrant status in the U.S.
The purpose of such a rule is a cultural exchange program. After your time in the U.S., you need o return to your home country to either share or utilize the skills learned. If you intend to stay in the U.S. and you apply for J-1 visa, than “cultural exchange” cannot take place.
When Doesn’t 2-Years Foreign Residency Requirement Apply?
However, not all J-1 programs must fulfill the two-year home country requirement. J-1 programs that are subject include:
#Government Funded Exchange Programs
If you are a part of a government-funded exchange program, in part or whole, directly or indirectly, by the United States government or the government of your home country, this rule will apply to you.
#Graduate Medical Education or Training
J-1 visa holders completing a graduate medical training are subject to the foreign residency requirement.
#Programs for Teaching Specialized Skills or Knowledge
If your area of study considers the field of specialized skills or knowledge in your home country, you need to return for at least two years before applying for a green card.
The U.S. Federal Government has determined that specific skills are needed in certain countries. When foreigners come from a country that requires the talent and skills they have worked or studied in the U.S., they need the home country physical presence requirement.
You can check the skills list to see if you are required to return home after your time.
Applying For The Marriage Green Card
After you determine that you are not subject to the home residency requirement, or if you got the waiver, you will be able to apply for a marriage-based green card from within the U.S.
However, transitioning from a J-1 exchange visitor to a marriage-based green card holder depends on whether the sponsoring spouse is a U.S. citizen or a green card holder.
#If your spouse is a U.S. citizen
First, you and your spouse must file the following forms:
- Form I-130 (the “Petition for Alien Relative”)- to be completed and signed by the sponsoring spouse.
- Form I-485 (green card application or the “Application to Register Permanent Residence or Adjust Status”) — to be completed and signed by the applicant.
You need to get married “in good faith” and not solely for immigration purposes. The bona fide marriage will be on test by consular or immigration officers during the marriage green card interview.
When USCIS receives your application package, your can expect your green card to arrive within 10 to 13 months.
How to Prove That You Want to Stay In the U.S. While on J-1?
Since a J-1 visa is only for a temporary stay, the immigration officer may presume your “willful misrepresentation” when you decide to marry and stay in the U.S.
To prove otherwise, you would need to provide documentation that will support your states. This can be email correspondence between you and your program sponsor detailing the official start and end dates of your training and proof that your marriage is bona fide.
#If Your Spouse Is A Green Card Holder-
Green card holders must file Form I-130. Once Form I-130 is approved, the applicant must wait for a visa number to be available and the priority date to be current.
You cannot apply for a marriage-based green card without a visa number. Visa numbers will be immediately available to U.S. citizen spouse, but spouses of green card holders must wait.
How you continue the process will depend on whether your visa number becomes available before or after your J-1 visa expires.
Applying From Within The U.S.
If a visa number becomes available before your J-1 expires, you’ll be able to stay in the U.S. and apply your Form I-485, application for permanent resident. If you are married to a Lawful permanent resident, you will have to file the necessary forms separately because you will need to wait until you acquire a visa number.
If the U.S. government approves this marriage-based green card application, you will receive a physical green card about 29 to 38 months after USCIS originally received your Form I-130.
Applying From Abroad
If a visa number becomes available after your J-1 exchange visitors visa expires and you can’t maintain valid immigration status (have a valid visa), you will need to leave the U.S.
In other words, you need to go through consular processing using the online green card application or Form DS-260, “Immigrant Visa Electronic Application.”
Upon the approval of your marriage-based green card application, you will receive your physical green card in about 27 to 46 months after USCIS received your Form I-130.
Note, that upon the visa’s expiration date, you need to leave the country. If you overstay the expiration date, you can break the 90-day rule and the U.S. Department of Homeland Security can even revoke your current visa status.
How An Immigration Attorney Can Help You Change Your Visa Status?
The immigration path can seem challenging, but understanding immigration law can bring benefits and help you avoid common problems. It is important to have all needed information and guidelines from the very first beginning of the marriage green card process so that you don’t make any mistakes that can cost you loosing the opportunity to get valid immigration status. If you need help to prepare Form I-130, Petition for Alien Relative (or family sponsorship form), get the green card and register permanent residence, seek help from an experienced immigration attorney.
Hiring an immigration attorney can bring you more benefits than just getting the green card, but more importantly uncover the winning strategy.
The Herman Legal Group law firm has over 25 years of experience working with U.S. Citizenship and Immigration Services USCIS and helping and helping green card applicants to obtain permanent residence status. Our friendly and professional team may want to help you go through green card process by analyzing your case, identifying the available options, and helping you decide the safest, most cost-effective, and quickest route to success.
Schedule a personal consultation with an immigration lawyer Richard Herman by calling 1-800-808-4013 or 1-216-696-6170 or booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.