A common question is, “Now that I am getting married, can I apply for a green card while on a J-1 visa?” The short answer is yes, J-1 holders can transition to a marriage-based green card in the United States.
However, the process does not apply to every J-1 holder’s situation. While getting married and applying for a green card is an option, some specific rules and conditions may apply.
In this article, you’ll learn about the green card eligibility requirements, the step-by-step application process, and tips for avoiding common mistakes.
The J-1 visa, officially called the Exchange Visitor Visa, temporarily allows foreign nationals to come to the United States for cultural exchange programs.
The U.S. Department of State administers the J-1 program and approves sponsor organizations to facilitate exchanges. As a J-1 visitor, you can participate in a wide range of programs in both public and private sectors, such as:
The goal of the J-1 visa is to promote cultural exchange and learning between your home country and the U.S. During your program, you share your own culture and experience American culture simultaneously. Afterward, you’re expected to return home and apply what you learned to benefit your home country.
You are most likely required to fulfill the two-year home residency if:
Your sponsor should inform you if you must comply with the two-year rule after your program ends. It may be helpful to inquire with your immigration attorney as well.
Carefully review your visa documents for expiration dates or restrictions. Some J-1 holders may qualify for a waiver of the requirement. If the two-year rule does not apply to you, your path to applying for a green card may be more straightforward.
J-1 visa holders subject to the two-year residency requirement need a J-1 home country physical presence waiver before applying for a marriage-based green card. The J-1 visa waiver removes the two-year home residency requirement.
You may qualify for a waiver if you can demonstrate:
If you are subject to the two-year rule, Form I-612, officially called the Application for Waiver of the Two-Year Foreign Residence Requirement, is the legal process under section 212(e) of the Immigration and Nationality Act for J-1 holders to request a waiver of the two-year home-country physical presence requirement.
You can include your J-2 dependent spouse and children in the I-612 application.
If your waiver application must be sent to the California Service Center, the processing time is currently 12.5 months. The current processing time for a waiver application sent through the Vermont Service Center is four weeks. Estimated processing times change frequently, so check the USCIS Case Processing Times Calculator for updates.
Your immigration lawyer can help you navigate this process efficiently and avoid overstay penalties or other complications.
Form DS-3035 is another option for J-1 visa holders to apply for a two-year home residency requirement waiver.
Like Form I-612, DS-3035 is submitted under section 212(e) of the Immigration and Nationality Act. However, instead of being filed with USCIS, the DS-3035 is submitted directly to the U.S. Department of State.
The eligibility categories and documentation required for Form I-612 are similar to the I-612. Your immigration attorney can assess your situation and help determine the most appropriate waiver form.
Some J-1 visa holders may be allowed to extend their status beyond the original program dates. Common recipients of extensions include:
To extend your J-1 stay, your program sponsor must file a request on your behalf. You will also need to provide:
You must file your J-1 extensions before your current status expires. Work closely with your immigration attorney to ensure you maintain compliance. Extensions are sometimes possible but not guaranteed. If an extension is not approved and your status expires, you must depart the U.S. immediately.
It is uncommon for J-1 visa holders to be granted a second extension of stay.
The purpose of the J-1 program is cultural exchange, which has a limited duration. Multiple extensions prolong the temporary stay, diverging from the original intent.
However, in rare cases, a second extension may be considered if the sponsor files again with extensive documentation explaining why additional time is necessary to complete the program.
The request still may not be approved, as one extension is usually the maximum allowed. Once you obtain your marriage-based green card, you will no longer need temporary J-1 status extensions.
Second extension requests require experienced legal guidance to have a chance at approval.
It is critical not to overstay your J-1 visa expiration date, even by one day. Remaining in the U.S. unlawfully has severe consequences.
If you stay past your J-1 end date without an approved extension, you will be out of status and can face:
U.S. Immigration and Customs Enforcement strictly enforces overstays. There are no exceptions for visa holders who get married during their program.
The only option is to depart on time. Your spouse can petition for you, but you will likely have to process outside the U.S. first.
The J-1 to green card process involves several potential forms and fees, including:
|DS-3035 with DS-2019||$120 + $100|
|Form I-485||The average fee is $1140|
Speak with your immigration lawyer about the forms needed for your J-1 Visa to green card status.
The J-1 is considered a nonimmigrant visa. A J-1 visa holder is only visiting the U.S. temporarily.
Once your specific J-1 program ends and your visa expires, you must depart the United States. You must return to your home country for at least two years before applying for certain other U.S. visas.
This stipulation is known as the “two-year home country physical presence requirement” and is designed to ensure you spend time sharing the exchange program benefits with your home country before pursuing longer-term U.S. visas.
There are some exceptions to this requirement, which we will discuss next.
The common question is, “Can I change from J-1 status to another visa status?” The answer to that question depends on your situation.
J-1 rules prohibit having “immigrant intent” to stay in the U.S. permanently after your temporary visa expires. When you get a J-1 visa, you must convince the embassy that you plan to return home after your program.
However, life circumstances can change. For example, you may develop a relationship and get married while on a J-1 visa. In this case, marriage to a U.S. citizen or lawful permanent resident can provide a path to apply for a green card.
If you are subject to the two-year home residency requirement, you’ll need a waiver to apply for a green card through marriage. You’ll have to demonstrate your original intent when you entered on a J-1 visa and that your current desire to stay is due to unexpected events.
Marrying a U.S. citizen or permanent resident is a common reason for J-1 holders to pursue a status change. USCIS will scrutinize your marriage, so bona fide evidence will be required. The process also differs slightly depending on whether you marry a citizen or permanent resident.
The experienced immigration attorneys at Scott D. Pollock & Associates, P.C. can help determine if you qualify to change your status from J-1 to a marriage-based green card and guide you through the process.
You can begin preparing your application if you are eligible for your home country’s physical presence waiver.
Carefully review your completed form for accuracy and completeness. Ensure that all information aligns with the supporting documents. An immigration attorney can identify potential issues and enhance the overall quality of your application.
You will fill out the DS-3035 form according to your circumstances. The Department of State will clarify which application needs to be completed. Submit your form along with the required documentation.
The DS-3035 processing time is anywhere between one to four months.
Once you have obtained approval of your J-1 waiver application (either through Form I-612 or DS-3035), you can proceed to the next step of applying for a marriage-based green card.
The key takeaway is that the waiver must be approved first if you are subject to the two-year requirement. You can only apply for adjustment of status once your waiver has been granted.
The specific steps for filing a marriage-based green card may vary depending on whether your spouse is a U.S. citizen or a green card holder.
An attorney can determine which path best fits your situation and handle all aspects of your application efficiently.
Once you have a J-1 waiver approved, your U.S. citizen or lawful permanent resident spouse must file Form I-130 on your behalf. This form is called the Petition for Alien Relative. As the J-1 visa holder, you are the beneficiary of the I-130 petition filed by your spouse.
The purpose of Form I-130 is to establish your eligibility as a relative for lawful permanent residence. It is the first step in transitioning from a nonimmigrant J-1 status to an immigrant marriage-based green card.
Your spouse must provide evidence of your marital relationship, U.S. citizenship or permanent resident status, and information about you to prove you qualify as their relative for immigration purposes.
Once you have an approved J-1 waiver and your spouse’s I-130 is filed (or approved if married to a green card holder), you can submit Form I-485 to apply for adjustment of status to permanent resident.
As the J-1 visa holder, you are the one who completes Form I-485. This form changes your status from temporary J-1 to lawful permanent resident.
You must file for adjustment before your J-1 status expires. If your J-1 expires before you receive approval, you may have to return home while the application is pending.
In addition to the marriage-based green card process, there is an alternative option if you have a J-1 waiver approved.
You may be able to apply for an employment-based green card. To do so, your employer must file Form I-140, Immigrant Petition for Alien Worker. With an I-140, your employer sponsors you for permanent residency based on your professional skills and position within the company. You must have received a permanent, full-time job offer to be eligible for this option.
The J-1 waiver allows you to apply for an employment-based green card without fulfilling the two-year home residency requirement first.
If you have a firm job offer from a U.S. employer willing to sponsor you, the I-140 may be a viable path to consider as an alternative to the marriage-based process.
The 90-day rule is a guideline used by U.S. immigration officers to determine whether a person has misrepresented their intentions when applying for a nonimmigrant visa, such as a J-1 visa. Essentially, the 90-day rule evaluates whether an individual had preconceived intent to stay in the U.S. permanently when entering on a temporary visa.
The 90-day rule doesn’t automatically apply to all nonimmigrant visas, and the application can vary based on individual circumstances.
Transitioning from a J-1 visa to a marriage-based green card can be complicated. Having an experienced immigration attorney to advise and represent you through the process can make an enormous difference in your success and peace of mind.
We have helped numerous J-1 clients navigate the waiver and green card process smoothly and efficiently.
We clarify each step you must take, ensure you avoid potential pitfalls, and handle all the complex paperwork on your behalf. We know what evidence USCIS looks for and how to present the strongest case possible. Going through the J-1 to green card process with legal experts maximizes the likelihood of approval and takes the stress off you. Contact us today to explore your immigration options. Our team is here and ready to help.View Similar Articles