J-1 Visa to Marriage-Based Green Card: Rules, and Restrictions

We often get the question, “Can I apply for a green card while on a J-1 Visa?” If you are a J-1 Visa holder, it is possible to transition from your current visa to a marriage-based green card. Though the process does not apply to everyone, if you are eligible, there are ways to change from an exchange visitor to a permanent resident through a marriage-based green card.

What is a J-1 Visa?

The J-1 Visa is the exchange visitors visa, officially known as the 6.4.1. Exchange Visitors Visa. It allows foreign nationals to come to the United States for the purpose of a cultural exchange program or activity. The Department of State (DOS) administers the J-1 Visa and also selects sponsors for the program.

Exchange visitors can participate in programs that are in both the public and private sectors delegated by the DOS. J-1 exchange visitor programs may include:

• Camp counselors
• Government visitors
• School teachers
• Scholars, such as short-term or long-term researchers or professors
• University students
• Specialists
• Intern programs
• Summer work exchange

The J-1 Exchange Visitors Visa is ultimately meant to encourage cultural exchange between your home country and the United States. After the program ends, the goal is for the exchange visitors to apply their knowledge in their home countries. The visa is meant as a way for you, a foreign national, to experience the United States and share your own culture in the U.S., then take the experiences from the U.S. and grow the fields of study you participated in your home country.

J-1 Visa Requirements About Returning Home

The J-1 Visa is a nonimmigrant visa, meaning that if you are a J-1 Visa holder, you are visiting the United States for a temporary amount of time. Once your J-1 Visa has expired and your program has reached completion, you must return to your home country. With the J-1 Visa, you may have to stay in your home country for two years after you finish your exchange visitor program.

How to Know If You Are Subject to Two-Year Home Country Physical Presence?

As mentioned above, there is a chance that you are required to return to and remain in your home country for a period of two years. If the J-1 two-year rule does not apply, your sponsor will most likely be the one to notify you. Always double-check to see if the two-year rule applies to you. The J-1 two-year return requirement most likely applies:

• If you participate in a government-funded exchange program where either the United States or your country of origin’s government pays for the program. Government programs include international organizations that are sponsored by your government or the United States government.
• If the J-1 program has specialized skills that are associated with your home country. If you are in a program for specialized skills or knowledge that is specific to your country, you will be required to stay the two years. The skills are meant for specializations for your country’s needs. The skill list can be found on the Department of State’s website.
• If you participate in graduate medical training or education programs for residency programs.

Speak to your immigration attorney about your specific program and the time requirements during and after your stay in the United States to see if your two-year home-country physical presence is required.

You will see on your visa stamps the expiration date and restrictions that apply to your program/ J-1 Visa. You may be a J-1 Visa holder who cannot meet the two-year requirement. If that is the case, you may be able to apply for a waiver that voids the requirement. If the J-1 two-year rule does not apply, you will be notified.

If your program does not require you to leave the United States and return to your home country, then you can apply for a marriage-based visa without any contingencies. But if you are subject to return-home rules, you can begin the process of waiving your J-1 Visa requirements by applying for a waiver and then a change of status.

J-1 Visa to Green Card

If you are asking, “Can a J-1 Visa holder change status?” the answer is maybe, as it depends on your circumstances. As a J-1 Visa holder, you are not allowed to have immigrant intent. Immigrant intent means that a temporary visa holder has the intent to stay in the U.S. after a temporary visa. Since J-1 Visa holders cannot have immigration intent, then you must come to the United States and prove that you fully intend to move back to your original home country after your stay.

However, plans can change. For instance, you may meet a partner and form a relationship. If you are required to follow the J-1 two-year rule, marriage is a possible way for you to apply for a waiver. You will need to prove that your initial intent for coming to the United States was not to get permanent residency, but that, because of unexpected circumstances, you now need to change your plans.

A J-1 Visa holder marrying a U.S. citizen is not uncommon, but you will need to prove your bona fide marriage to United States Citizenship and Immigration Services (USCIS). One of the main reasons why you may need to change your J-1 status is to marry a United States citizen or permanent resident. Your spouse’s citizenship status will determine how to apply for a waiver, as they are different processes. Getting married while on a visa waiver program can lead to you applying for a change of status to a marriage-based green card.

What Is the J-1 Home Country Physical Presence Waiver?

If you came to the United States and would like to apply for a marriage-based green card, then you will have to waive your J-1 Visa requirements. In order to receive the waiver, you need to qualify for at least one of the following:

1. Proving that your child or spouse, who is a U.S. citizen or Lawful Permanent Resident, would face exceptional hardship if you are not able to stay in the U.S. with a marriage-based green card. You must prove that if you are denied a green card and must leave your family (child/children/spouse), whatever problem or ailment they are currently in will be worse if you are not present.
2. Your country’s embassy provides a statement of no objection, saying that the embassy is willing to waive the requirement and approves of your stay in the United States. They will need to state they have no objections even if they provided funds for your participation in the program.
3. That you will suffer persecution upon arrival to your home country. It is important to note that this option for petitioning for a waiver differs from asylum. Asylum must be a request that you would face (or currently face) persecution based on your nationality or membership in a particular social group. To apply for asylum, you may also be under persecution because of your race, religion, or political opinion. For the J-1 waiver, you can only attempt to waive your visa requirements if you would face persecution for your race, religion, or political opinion.
4. Separate from a J-1 to marriage-based green card need, you may also request a waiver if a U.S. government agency, such as the State Public Health Department, asks for you to stay in the United States to further your education or for employment. If the United States facility asks you to become an employee in either an area with a professional shortage or one that serves an underprivileged community (designated by the U.S.,) you may work there after receiving your waiver.
5. Again, apart from the marriage-based visa, you may request a waiver if a United States government agency asks you to continue your work on a project for the government. The government may then sponsor your waiver to keep you on as part of the project.

What Is an I-612?

The I-612, Application for Waiver of the Foreign Residence Requirement is for J-1 holders and their spouses and children. The application is to waive the two-year foreign residence requirements. This is a J-1 Visa extension USCIS form and is legal under section 212(e) of the Immigration and Nationality Act.

How to Apply for a Waiver

Form I-612 are intended for J-1 exchange visitors who:

1. Have a spouse or child experiencing exceptional hardship
2. Believe they will experience persecution based on their race, religion, or political opinion

You will need to submit the evidence required to prove your status as one of these two options. You will also need to submit your Form I-94, Arrival-Departure Record. You will also need to include your personal statement. Your immigration attorney can help with the process of filing your Form I-612 and all the necessary documentation.

What Is the I-612 Processing Time?

If your waiver application needs to be sent to the California Service Center, processing time may be between 13 to 16.5 months. If your waiver application is through the Vermont Service Center, the processing time is between 4 to 6 months. Talking with your immigration lawyer ahead of time can avoid complications such as overstay penalties.

What Is a DS-3035?

The DS-3035 is also a J-1 exchange visitors waiver for the two-year post-exchange requirements. The DS-3035 is through the Department of State, also under section 212(e) of the Immigration and Nationality Act.

How to Apply For a Waiver

You will fill out the DS-3035 form based on your circumstance. The Department of State will clarify which application needs to be completed. Submit your form along with your DS-2019 and any supporting documents you need.

What Is the Processing Time for DS-3035?

The DS-3035 processing time is anywhere between one to four months.

J-1 Visa Extension After Waiver

Once you have been approved for a J-1 waiver after you’re married to a U.S. citizen, then you can start the process of applying for a green card. Getting married on a J-1 Visa is not impossible, you just need to have your J-1 waiver ahead of time before the process can start. After you have received approval for your waiver, your marriage-based green card application can begin.

How to File For a Green Card

When you are married with a J-1 Visa, there are two ways of obtaining a green card based on your marriage to either a U.S. citizen or a permanent resident. If you are married to a U.S. citizen, your J-1 to green card time will be faster because the forms you submit will be submitted simultaneously.

However, if you are married to a Lawful Permanent Resident, then you will have to file the necessary forms separately because you will need to wait until you acquire a visa number.  You can then file to adjust your status from J-1 to marriage-based green card.

Form I-130

Form I-130 is officially called the Petition for Alien Relative. As the J-1 Visa holder, you will need your spouse to petition for you to be their beneficiary. This is one of two forms necessary to transition from a J-1 Visa to a marriage-based green card because you already held a temporary visa before and during your marriage.

The purpose of the relative petition is to establish residency so that you can lawfully stay with your spouse in the United States.

Form I-485

Form I-485 is the Application to Register Permanent Resident or Adjust Status. After you have gained acceptance and your two-year J-1 requirement is waived, you are now a J-1 Visa holder who can adjust your status for an immediate relative to become a Lawful Permanent Resident. You are the one who fills this form out. If you are married to a U.S. Citizen, then you can submit your Form I-485 with your spouse’s Form I-130. If you are married to a Lawful Permanent Resident, your spouse will submit their Form I-130 first. You will then wait for their form to be approved and file your application for adjustment of status.

If you have not gotten your visa number from Form I-130 before your J-1 expiration date, then you must return home when your program date ends. Speak to your immigration attorney about your potential options for the next steps if you must return home.

Form I-140

There is an alternative way after you have received your waiver to be granted a green card. If you apply with a Form I-140, you may have the option of becoming a visa holder. Form I-140 is the Immigrant Petition for Alien Workers. It is an employment-based visa.

 

What to Do If Your J-1 Expired: Can You Apply For an Extension?

You may be allowed to apply for an extension for your J-1 Visa, and many J-1 Visa holders often do. Those who usually apply for an extension include scholars and those in academia—professors, teachers, and students—government visitors, business workers and trainees, and specialists.

In order to have your J-1 status extended, your sponsor—the person or entity in charge of your program—must file a petition on your behalf. The following documents are required for an extension:

• DS-2019 (petitioned for by sponsor)
• Form I-94
• Form IAP-66
• Proof from the visitor that you, the visitor, can support yourself for the next year
• The reason why you are requesting to extend your stay
• Proof of insurance
• Supporting documents proving why you should be allowed an extension of stay under your J-1 Visa

What Should You Do If Your J-1 Was Already Extended Once?

It is atypical for a J-1 Visa holder to be allowed a second extension of stay after the first J-1 Visa extension. This is for several reasons, one of which is because the J-1 Visa is for an exchange program to promote education, culture, and ideas between the United States and the exchange visitor’s home country. By extending your stay, the intent of exchange may be jeopardized. Much like the first extension, the J-1 holder’s sponsor is the one to request the second visa extension. More supporting documents are needed.

Once you receive your permanent residency card for your marriage-based green card, you will no longer need to reapply for a J-1 Visa extension.

Are There Any Penalties for the Overstay?

If you stay past your visa’s expiration, then you will have an unlawful presence and you may be deported or arrested. You may also be banned from the United States.  Overstaying past your visa date is taken very seriously by U.S. Immigration and Customs Enforcement (ICE). Therefore, if you are asking, “How long can I stay after my J-1 visa expires?” the answer is you must return to your home country right after the expiration date. If you are in the U.S. with an overstayed visa, you are married to a permanent resident, and you would like to remain in the United States, your spouse will need to petition for you. Chances are, you will still need to return to your home country first.

Working with an immigration lawyer can be extremely beneficial for you to make certain that you are staying within the legal parameters of your stay while applying for a waiver or extension for your J-1 Visa and then for a marriage-based green card.

What are the Fees?

As you can see, there are multiple forms that are required for each step of your green card process. You do not need to submit all forms. You will pay the fees of the forms that you must submit for your individual situation. Below are the options and fees for your J-1 to green card, not necessarily all through a marriage-based visa.

• Form I-612: $930
• Biometrics fee: $85
• DS-3035 with DS-2019: $120
• Form I-130: $535
• Form I-140: $700
• Form I-485: varies depending on your age and the need for a biometrics fee. Total cost between $750 to $1,140. Refugees filing Form I-485 do not have to pay the filing fee.

Speak with your immigration lawyer about which forms are needed for your J-1 Visa to green card status.

Why Should You Hire an Immigration Lawyer for the J-1 Visa to Green Card Process?

The process of transitioning your status can be a difficult one. If you are a J-1 Visa holder marrying a U.S. citizen, you may consider working with an immigration lawyer to apply for a waiver and then a green card. The experienced attorneys at Scott D. Pollock & Associates P.C. have over seven decades of combined experience in immigration law. We can help you with any questions you may have about changing your J-1 Visa to a green card.

The process of waiving the J-1 requirements and then transitioning to a marriage-based green card includes multiple steps and can be done in several different ways. We can help clarify the right path to take and we will support you the entire way.  Contact us at 312.444.1940 or fill out an online contact form today.

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