The J-1 nonimmigrant visa classification is a temporary status issued to foreign researchers, scholars, professors, and students to participate in designated exchange visitor programs in the United States. Just like some of the other temporary visas, most J-1 holders are required to return to their home countries after completing their programs.
However, some J-1 holders get married to U.S. citizens or green card holders, and would love to remain in the U.S. with their spouses after their program. While there is no law prohibiting such marriage, there is more to becoming a permanent resident than just getting married to a citizen or permanent resident.
If you are a J-1 visa holder seeking to obtain a marriage-based green card, you will need to follow the appropriate steps to achieve a lawful change of status.
How Do I Change My J-1 Visa to Marriage-Based Green Card?
The core principle behind the J-1 visa is its cultural exchange nature, which is aimed at promoting cordial relationships between the United States and participating countries. To fulfill this objective, participants are required to return to their home countries for at least two years after their J-1 stint to utilize the experience gained in the U.S. in advancing the growth of their own countries.
Even if you would like to spend more time in the U.S., you will still need first to go back to your country, complete the required two years, and then reapply for another nonimmigrant or immigrant visa to be able to return.
Fortunately, this two-year home country physical presence requirement doesn’t apply to certain J-1 visitors. In order to get started with the J-1 to marriage-based green card process, the first thing is to be sure whether or not this rule applies to you. If it does, another piece of good news is that there is a way around it. However, this will also require that you take some extra steps, which are explained below.
How Do I Know If I’m Subject to Two-Year Home Country Physical Presence?
Your specific J-1 program type will determine if you are subject to the two-year home country physical presence requirement. The following programs are generally required to meet the requirement:
- Government-Funded Exchange Programs: If your program is wholly or partly funded by the U.S. government or the government of your home country, you will be subject to the two-year home residency requirement.
- Programs for Specialized Skills or Knowledge: Some countries have specialized skills mentioned on the skills list under the J-1 program. If your program is in any of the fields of the listed specialized knowledge and skills, you will be subjected to the requirement. The aim is for you to use the skills for the development of your country during your two-year stay.
- Graduate Medical Training or Education Programs: If you are in the U.S. for medical residency, you are expected to fulfill the home residency requirement.
If you are still in doubt as to whether or not this applies to you, you can also check the DS-2019, Certificate of Eligibility received from your sponsor. There is a section of it which clearly indicates this.
Guidelines for Changing from J-1 to Marriage-Based Green Card
If your program doesn’t require physical presence, then you are free to stay in the U.S. and commence your marriage-based green card processing. But if the rule applies to you, you may still apply for a change of status, but will need first to get a waiver.
How to Waive the J-1 Home Country Physical Presence for Marriage-Based Green Card
There are five statutory bases that allow you to waive the requirement and start your marriage-based green card processing. You will need to qualify for at least one of the bases and file your waiver following that very basis:
- You may get a statement of no objection from your country’s embassy stating its willingness to allow you waive the requirement and remain in the U.S.
- You may also request for a waiver by providing evidence that your U.S. citizen or lawful permanent resident child or spouse would face exceptional hardship if you were denied the marriage-based green card
- A waiver may also be granted if you can prove that you will suffer persecution if you return to your home country.
- If you are currently working on a project that is of interest to a U.S. government agency, you may get a request from the agency stating its intention to sponsor your waiver request and retain you.
- You may also get a waiver if you have a request to work as a healthcare provider in a designated state public health department or its equivalent if your J-1 program is in medical training or education field.
Applying for J-1 Physical Presence Waiver
The processing time varies depending on which of the five bases you qualify for. The general guidelines are as follows:
- Start by completing the DS-3035, J-1 Visa Recommendation Application through the State Department’s Online Service. You will need to print out the DS-3035 with a unique barcode.
- Mail the printed waiver application to one of the two addresses listed on the website along with copies of all DS-2019 and IAP-66 forms ever issued to you as well as two self-addressed and stamped legal-size envelopes. These must be submitted together with the processing fee of $120
- Submit supporting documents for the statutory waiver basis you qualify for.
- Check your waiver request status. Also, if you change your address after filing the waiver, you will need to update that on the website.
- It takes between one and four months to process the waiver.
After getting approval for the waiver, you can remain in the U.S. and process your change of status from J-1 to a marriage-based green card.
J-1 to Marriage-Based Green Card: How to File Status Adjustment Petition
Your J-1 to marriage-based green card process will depend on whether you are married to a U.S. citizen or a permanent resident. Although the two marriage types will be processed using the same forms, they have different requirements and processing times.
J-1 to Green Card If You Are Married to a U.S. Citizen
Being married to a U.S. citizen puts you in an advantageous position as your application is going to be processed faster compared to a green card holder’s spouse. You and your spouse may file the following forms at the same time:
- I-130: This is officially called Petition for Alien Relative, which must be completed by your U.S. citizen spouse. The I-130 petition is used to establish the marital relationship as well as to show your spouse’s willingness and readiness to sponsor your J-1 to marriage-based green card application.
- I-485: This will be completed by you as the beneficiary of the green card petition. It is the application to adjust your status from J-1 to a marriage-based green card.
Each of the forms must be completed and submitted with the appropriate marriage-based green card supporting documents.
J-1 to Green Card If You are Married to a Permanent Resident
Just as in the case of a U.S. citizen, the I-130 is filed by your spouse, while you, the J-1 visitor, will need to file the I-485. The difference is that you cannot submit the two forms together at the same time. Your permanent resident spouse will need to first file an I-130 and wait until the petition is approved before you can continue the process.
Once the petition is approved, you will need to wait for a visa number. Unlike a U.S. citizen’s spouse, a green card is not always readily available to the immediate relatives of a permanent resident. This is because there is an annual numerical limit for the number of green cards issued to foreign nationals sponsored by a permanent resident.
Once a visa number is available, you can proceed to file your I-485 to adjust your status from J-1 to a marriage-based green card.
J-1 to Marriage-Based Green Card Processing Time
The marriage-based green card processing time will depend on whether you are married to a citizen or permanent resident. As a spouse of a citizen, the availability of green card would mean that once your forms are received by the USCIS, the processing will commence. It will take 10 to 13 months to decide and issue a decision on your application.
For a marriage-based card sponsored by a permanent resident, you will need to factor in the time you will spend waiting for the priority date to be current. The overall processing time could be as long as two to three years.
What if My J-1 Visa Expires While Waiting for Marriage-Based Green Card?
Due to the long waiting time, your J-1 status may expire while the USCIS is processing your green card application. Every alien on a nonimmigrant status must depart the U.S. upon the expiration of their visa. It is a violation of immigration law to overstay your visa period unless you maintain valid immigration status by getting an extension of your J-1 visa or changing your status to that of another type of temporary visa.
If your J-1 status expires before the approval of your marriage-based green card and you can’t maintain valid status, you will need to return to your home country and continue the process there. Rather than adjusting your status from a J-1 visa to a marriage-based green card, you will attend an interview at a U.S. consulate or embassy in your home country. This is known as consular processing.
Can the Immigration 90-Day Rule Affect My Marriage-Based Green Card Process?
Filing your J-1 to marriage-based green card application at the appropriate time is crucial. The J-1 classification does not have “dual intent”, meaning you shouldn’t maintain the intent of getting a green card while applying for the J-1. For this reason, it is advisable not to file your change of status too early.
Submitting within 90 days after arriving in the U.S. on a J-1 status will suggest to the immigration officers that you had the intent from the onset. This is an immigration law violation known as willful misrepresentation. Although it does not automatically translate to denial, it will arouse suspicions from immigration officers and will make it more difficult to get approval for your marriage-based green card.
The best way to avoid this is to allow at least 90 days between your arrival time and commencement of your adjustment of status process.
How VisaNation Law Group Immigration Attorneys Can Help
Generally, adjusting from a no dual intent temporary visa to a marriage-based green card is a complicated process that requires completing several steps of immigration and documentation. However, the good news is that you can improve your approval chances by retaining an experienced immigration attorney.
VisaNation Law Group’s team of qualified immigration attorneys are highly experienced in the J-1 to marriage-based green card process. They will help you file your petition with the required documentation. The lawyers will also guide you through the entire process and ensure that you have the best chances of approval. You can schedule a consultation with us today by filling out this contact form.