J-1 Waiver: Marriage to a U.S. Citizen

The J-1 visa is a common and popular nonimmigrant work and study visa that encourages foreign nationals to come to the U.S. temporarily to learn and gain skills to take back to their home country. J-1 visa holders are completely free to marry U.S. citizens, but that does not automatically qualify them for permanent resident status (green card). In order to make that transition, there are several steps that need to be taken. On this page, you will learn how to make the J-1 to green card transition. J-1 to a marriage green card is a common transition, however, it can be complicated, and considering that the stakes are high, any mistake can very costly. At VisaNation, we focus on getting the best result for each client. Get started today!

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How to Change from J-1 Visa to Green Card Through Marriage

The process below outlines the steps to change from J-1 visa to green card, once you have an approved J-1 waiver.

1. Spouse (your U.S. citizen spouse/lawful permanent resident spouse) files Form I-130, Petition for Alien Relative, for you the beneficiary. Having a lawyer assist you with this form is highly advised because it establishes your eligibility to transition from J-1 status to a marriage green card.
2. After the I-130 is filed (or is approved), it’s time to file Form I-485 to apply for adjustment of status to permanent resident. Those married to a U.S. citizen can file the I-485 along with the spouse’s I-130. Those who are married to a green card holder need to wait until the I-130 is approved before submitting the I-485.

J-1 Visa to Green Card Requirements

Many J-1 visa holders who would like to live permanently in the U.S. through a green card look to marriage as their viable option. There is no law that would prevent them from marrying a U.S. citizen, but there is more to getting a green card than marriage. Obstacles such as the home residency requirement must be met or waived before a J-1 holder who marries a U.S. citizen can seek permanent residence.

The Home Residency Requirement

One caveat to the J-1 visa is that it is not a “dual intent” visa, meaning that you cannot have the intent to get a green card when you apply. This can create issues if you are not careful when pursuing a green card while on J-1 status. One way that the USCIS encourages J-1 holders to make their stay temporary is through the home residency requirement.

This requirement states that most J-1 visa holders must return to their home countries for at least 2 years after their J-1 visa validity period is expired. You must be physically present in the country for a total of two years before being able to apply or petition for any immigrant or nonimmigrant status in the U.S.

Many individuals wonder why they are subject to the 2-year physical presence requirement. The purpose of a J-1 visa is a cultural exchange program. In other words, after your time in the United States, you are expected to return to your home country and either share or utilize the skills learned. If one does not return to their home country, then in theory, this “cultural exchange” cannot take place.

The good news is that not all J-1 individuals must fulfill the two-year home country requirement. Those that are subject to this requirement include:

Government-Funded Exchange Programs

Are you part of a government-funded exchange program? In other words, was the J-1 program financed in part or in whole (indirectly or directly) by the United States government or the government from your home country?

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Graduate Medical Education or Training

Those who are completing a medical residency program on their visa are subject to the home country requirement.

Programs for Teaching Specialized Skills or Knowledge

Is your area of study considered under the field of specialized skills or knowledge by your home country? If so, you must fulfill the two-year requirement.

The Federal Government has determined that certain skills are needed in certain countries. If you come from a country that needs the skill that you have worked or studied in the U.S., you will be subject to the home residency requirement. Be sure to check the skills list to see if your skills and country require you to return home after your stint.

For example, Canada is not in need of any skills, so it does not appear on the list. On the other hand, India has a need for many skills, so most J-1 holders will be subject to the requirement.

Am I subject to the requirement?

One of the ways to know for sure if you are subject to this requirement is to double-check your Certificate of Eligibility (Form DS-2019). There is a specific space that indicates whether you are subject to this requirement but you should also refer to the visa that was given by the U.S. consulate.

The 90-Day Rule Requirement

You may have heard the term 90-day rule floating around – here’s what it is in a nutshell:

The 90 days is a benchmark used by immigration officials to gauge whether an individual has misrepresented their intentions when applying for a nonimmigrant visa (like a J-1 visa.)

• Within 90 Days: If an individual engages in activities suggestive of immigrant intent (like marrying a U.S. citizen or initiating a green card application) within 90 days of entering the U.S. on a nonimmigrant visa, it might be inferred that they misrepresented their intentions during the visa application process.
• After 90 Days: If the same activities take place past the initial 90-day period post-entry, there is typically no automatic presumption of misrepresentation. However, immigration authorities may still scrutinize the individual’s intent. It’s important to note that the 90-day rule doesn’t universally apply to all nonimmigrant visas, and its application can be contingent upon individual circumstances.

How To Apply for a J-1 Visa Waiver?

Fortunately, there are ways to bypass this requirement with a waiver, which allows you to simultaneously stay in the country while you adjust your status to get a green card. Here are some of the bases for obtaining this waiver.

• Getting a “no-objection statement” from your home country’s government.
• Your spouse (U.S. citizen or legal permanent resident) or child would face exceptional hardship should you be denied a green card and forced to return to your home country.
• 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. Again, VisaNation Law Group’s  Fort Lauderdale immigration attorneys will best be able to guide you.

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Not Subject to the 2-Year Requirement

In the event that your J-1 visa did not come with the home presence requirement then upon marrying a U.S. citizen, you will be able to file the application paperwork to adjust your status immediately.

Expect to submit all your fees and documents including the I-485 by mail to U.S. Citizenship and Immigration Services (USCIS).

J-1 to Marriage Green Card Processing Time

The I-130 can take up to a full year or more to be processed by the USCIS and the I-485 can take an average of six months. Unfortunately, there is no way to expedite the adjudication with premium processing, which is available for most visas and green cards that use the I-129 or I-140 petitions. So you should expect to wait quite a while for your marriage-based green card.

Also, remember that you will need to keep an immigrant status maintained during this time. Visas like the H-1B allow holders to extend their validity period past the six-year maximum if they are waiting on their I-140 priority date. However, J-1 validity periods are based on the length of the program that has sponsored you, so you will need to reach out to a representative for that program to see about extending your status while you wait for your I-130 to be processed if necessary.

If you are planning on traveling while you are waiting for your marriage green card to process, you must submit Form I-131, Application for Travel Document. By submitting this form, you are applying for a reentry permit which would allow you to come back to the U.S.

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Consular Processing and Interview

Alternatively, if your J-1 status ends before your green card is issued, you can leave the country and return when the I-130 is approved. However, you will not be adjusting your status with the I-485. Instead, you will go through consular processing. This involves traveling to a U.S. consulate or embassy in your home country and attending an interview with a consular officer.

In either case, whether you are adjusting your status or going through consular processing, you will need to take part in an interview that includes you and your spouse. An immigration officer will ask you a series of questions for the marriage-based green card to determine if your marriage is legitimate and not a fraudulent attempt to immigrate to the U.S. If your relationship is genuine, then simply answer as honestly as you can. However, if red flags begin to pop up, the officer may choose to interview you and your spouse separately and compare your answers. Speak with your immigration attorney to make sure that you are prepared for your interview.

The 90-Day Rule

Even if you are under a J-1 waiver and intend to marry a U.S. citizen, you can still face some difficulties due to the 90-day rule. The rule is applied by immigration officers if an immigrant, a J-1 visa holder, is seeking to obtain a green card within the first 90 days of arriving in the U.S. It was put in place to weed out fraudulent marriage-based green card applications.

We advise our clients to wait for 90 days but USCIS has been applying it arbitrarily. Hence, while there is a rule it is not evenly implemented.

If you apply for a marriage-based green card within the first three months of your arrival in the country, immigration officers can put your application under higher scrutiny. In some cases, you can even be accused of misrepresenting your intention to move to the U.S.

You would fall under the 90-day rule from the moment when you have entered the U.S. for the first time on your J-1 visa and not on any other type of visa. In some instances, you can check your I-94, Arrival/Departure Record, if you are struggling to remember when you have arrived in the country. For example, if you entered the U.S. on 1 August 2022, the rule would apply to you until 30 October 2022.

If you originally entered the U.S. on a different type of visa and then received a J-1 visa while being in the country, then your 90-day rule would start when you first entered the U.S. on your non-J-1 visa.

Conditional Green Card

If you do finally make the transition from J-1 visa status to a marriage-based green card, there may be one last hitch. If your marriage is less than 2 years old, then you will be issued a conditional green card, CR-1. This visa is only valid for 2 years. At that time, you and your spouse will need to return and file to remove the conditions for you to obtain a full-fledged green card, which is valid for ten years at a time. It is important to note that you must apply to remove conditions within 90 days of the expiration of your CR-1 visa.

If your spouse is not able to file (if you have divorced your spouse or if your spouse has passed away), then you will need to file a waiver showing that you entered into the marriage in good faith. With this waiver, you may still be able to remove the conditions on your green card.

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How Much Will It Cost?

Like most immigration options, including your J-1 visa, there are costs and fees associated with getting a marriage-based green card. The first fee is for your J-1 visa waiver. There is a non-refundable fee for the DS-3035 of $120 that must be paid, since you will have to obtain a waiver before pursuing your green card.

When your U.S. citizen sponsor spouse files the I-130 petition, there is a $535 filing fee. Additionally, there is a fee schedule that goes along with the I-485, which varies based on your age. You can see the entire schedule in the “Filing Fee” section of the USCIS page, but overall, it ranges from $750 to $1,225. This also includes having your biometrics (fingerprints) taken for $85. If you are going through consular processing, then you will need to file a DS-260 and pay the $325 filing fee along with a $120 affidavit of support fee to demonstrate that you will not need to rely on the U.S. government for financial support once in the country.

Lastly, you will need to factor in any traveling costs as well as attorney fees that may go along with this transfer. If you need to change your status to a dual intent visa before getting a green card, you will have to consider what it costs to obtain that visa.

Have additional J-1 visa questions? Click here to read the 50 most frequently asked J-1 waiver questions and answers!

J-1 Visa to Green Card: Non-Marriage Options

Although marriage-based green cards are one of the most popular immigration options for J-1 visa holders, it is not the only one. It is worth exploring other visas that have dual intent. One of them is the H-1B visa which is aimed at helping U.S. employers hire foreign talent that at least has a bachelor’s degree. H-1B holders are eligible to apply for green cards if they meet the requirements.

Frequently Asked Questions

Below, you will find answers to the most commonly asked questions:

How does the process differ if the J-1 visa holder is married to a U.S. citizen who is currently living abroad?

If your spouse is living abroad and you are a U.S. citizen, you’ll need to file an I-130. Once that is approved the case will be transferred to the National Visa Center for additional processing. From there, the case will be sent to the consulate office at the place where you spouse lives and the NVC will send additional details about an interview date.

What are the challenges for J-1 visa holders who have children from a previous relationship when applying for a marriage-based Green Card?

J-1 visa holders are in a non immigrant intent visa status so they must be mindful of ensuring their status has been maintained and that they have no issues regarding intent fraud or misrepresentation at time of a green card based filing. Also, if they have children (below the age of 21) from a previous relationship, the spouse sponsor may be able to sponsor them as a “stepparent” so long as the marriage took place prior to their 18th birthday. If the marriage took place after the 18th birthday, then options become limited or unavailable so legal assistance would be recommended to advise accordingly.

What are the steps for a J-1 visa holder if their U.S. citizen spouse passes away during the application process?

If the spouse has passed away after the I-485 filing, then there may be relief as a widower or surviving beneficiary of a pending application. However, if the I-485 application has not been filed or you were not yet married, there is no relief available. In addition, for spouse abroad waiting on a Consular or Embassy processing through the I-130 process, relief may be available by converting the I-130 to an I-360 Petition for an Widower.

Can You Stay in the U.S. While You Apply?

It’s important to file before the J-1 status expires otherwise if it expires before receiving approval you might need to return home while the application is pending.