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

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.

J-1 Waiver Marriage Background

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 marrying. 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.

Purpose of the Physical Presence 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 programs 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?

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.

Physical Presence Requirement – J-1 Waiver Marriage

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. There are 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, our Fort Lauderdale immigration attorneys will best be able to guide you.

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-Based Green Card Process

If you qualify for a J-1 visa waiver and are able to pursue a green card without jeopardizing your status, then the next step will be to start taking steps toward your marriage-based green card. The following steps will depend on whether or not you have already married a U.S. citizen.

If you are not yet married, speak with your immigration attorney about when a good time would be to marry. Usually, foreign fiances will enter the U.S. under a K-1 visa with the mandate to be married to their permanent resident or U.S citizen fiance within 90 days. After getting married, the foreign spouse will file for a green card.

Because, as a J-1 visa holder, you do not need a K-1 visa, you will need to get married to your U.S citizen fiance before filing. Once you are married, you can file an I-130 petition to the USCIS. Fortunately, as the spouse of a U.S. citizen, you will be filing as an immediate relative of a citizen. This means that you will not need to wait for a priority date to be current in order to move onto the next step like many family- and employment-based green card petitioners. As soon as your I-130 is approved, you can move onto the next step, which is to file an I-485 form to adjust your status from the nonimmigrant J-1 status to marriage-based immigrant status.

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.

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.

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, which will expire in two 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.

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.

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 as well that 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.

Consult an Immigration Attorney

Getting a green card through marriage with a J-1 visa can be a tricky situation if you try to do it yourself. The best way to avoid costly mistakes that could result in negative action being taken against you is to have a J-1 visa attorney help you with your case.

Need help determining your particular J-1 waiver marriage process? Our J-1 immigration lawyers have years of experience handling these cases and addressing potential issues before they occur. Contact us to schedule your consultation with our office today.

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

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