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.
What Is a J-1 Visa?
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:
- Camp counseling
- Government research
- Teaching
- University study
- Professional training
- Internships
- Summer work
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.
How to Know If You Are Subject to Two-Year Home Country Physical Presence?
You are most likely required to fulfill the two-year home residency if:
- Your J-1 program is government-funded, either by the U.S. government or your home country’s government. Government-funded programs include those sponsored by international government organizations.
- Your program is focused on acquiring specialized skills or knowledge intended to benefit your home country. You can find these skills on the Department of State’s requirement list.
- You are completing graduate medical education, such as a medical residency program.
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.
What Is the J-1 Home Country Physical Presence Waiver?
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:
- Exceptional hardship to a spouse or child who is a U.S. citizen or lawful permanent resident if you had to leave the U.S. You’ll need to provide evidence that your absence would cause extreme hardship.
- No objection from your home country’s embassy. The embassy must state that they have no objection to you remaining in the U.S.
- You would face persecution in your home country due to race, religion, or political opinions. Note: this is different from an asylum claim.
- A U.S. government agency requests an extension of your stay for purposes specifically related to your field, such as completing your education or continuing work on an important project.
What Is Form I-612?
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.
What Is the I-612 Processing Timeline?
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.
What Is Form DS-3035?
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.
What to Do If Your J-1 Expired: Can You Apply for an Extension?
Some J-1 visa holders may be allowed to extend their status beyond the original program dates. Common recipients of extensions include:
- Academic scholars, professors, and students
- Government visitors
- Business trainees
- Specialists
To extend your J-1 stay, your program sponsor must file a request on your behalf. You will also need to provide:
- Valid DS-2019 form from the sponsor
- Copy of Form I-94
- Proof you can financially support yourself during the extension period
- Reason/justification for requiring more time
- Valid health insurance documents
- Supporting materials to bolster your extension request
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.
What Should You Do If Your J-1 Was Already Extended Once?
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.
Are There Any Penalties for the Overstay?
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:
- Removal proceedings and deportation
- Expedited removal without seeing a judge
- Bars from re-entering the U.S. for 3 or 10 years
- Possible criminal charges and jail time
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.
What are the Fees?
The J-1 to green card process involves several potential forms and fees, including:
| Form | Fee |
|---|---|
| Form I-612 | $930 |
| DS-3035 with DS-2019 | $120 + $100 |
| Form I-130 | $535 |
| Form I-140 | $700 |
| 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.
J-1 Visa Requirements About Returning Home
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.
J-1 Visa to Green Card
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 circ*mstances 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 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.
How to Submit Form I-612
You can begin preparing your application if you are eligible for your home country’s physical presence waiver.
Form I-162 Documents
- Form I-612: The primary application form.
- Form I-94, Arrival-Departure Record: Proof of your legal entry and status in the U.S.
- Personal Statement: A detailed explanation of your situation supports your waiver request.
- Evidence Supporting Your Claim: Depending on your reason for applying, you may need to provide additional documents such as medical records, affidavits, or other relevant evidence.
Completing Form I-612:
- Part 1: Provide personal details, including your name, contact information, and Alien Registration Number (if applicable).
- Part 2: Indicate the reason you have a foreign residence requirement.
- Part 3: Specify the grounds for requesting the waiver, such as exceptional hardship or fear of persecution.
- Part 4: Fill in details about your J-1 program and any relevant immigration history.
- Part 5-7: Provide your signature and date the form where required. An unsigned form may be rejected. If you have help from an attorney or an interpreter, they must also sign the document.
- Part 8: Attach all necessary additional information and supporting documents that validate your claims. These documents may include evidence of hardship, persecution risk, or other relevant material.
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.
How to Submit Form DS-3035
You will fill out the DS-3035 form according to your circ*mstances. The Department of State will clarify which application needs to be completed. Submit your form along with the required documentation.
Form DS-305 Documents
- Passports containing U.S. visas
- Copies of DS-2019 or IAP-66 forms
- I-94 Departure Record card
- Alien Registration “A” Number (if applicable)
- Information on J-2 dependents and/or J-1 spouse
Completing DS-3035
- Step 1: This form is similar to Form I-162. However, you’ll complete the entire process on the U.S. Department of State website. After completing it, you’ll receive a barcode that should be printed in black and white.
- Step 2: Mail the completed Form DS-3035 with barcode, legible copies of every Form DS-2019/IAP-66 ever issued to you, two self-addressed stamped legal-size envelopes, and the application fee to the appropriate address (depending on the mailing method).
- Step 3: If more information or documents are required, respond using the contact information on your online Form DS-3035.
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 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.
How to File For a Green Card
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.
- If you’re married to a U.S. citizen, you can file Form I-130 and Form I-485 simultaneously. This allows you to apply for adjustment of status while the petition is still pending.
- You must follow a two-step process if you’re married to a lawful permanent resident. First, your spouse must file Form I-130 and wait for approval. You can file Form I-485 to change your status only after the visa petition is approved. This process takes more time.
An attorney can determine which path best fits your situation and handle all aspects of your application efficiently.
Form I-130
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.
Form I-485
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.
- If you are married to a U.S. citizen, you can file your I-485 along with your spouse’s I-130 petition.
- If you are married to a green card holder, you must wait until your spouse’s I-130 is approved before submitting your I-485 application.
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.
Form I-140
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 in U.S. Immigration
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.
How it Works
- Within 90 Days: If a person takes actions indicative of immigrant intent (such as getting married to a U.S. citizen or applying for a green card) within 90 days of entering the U.S. on a nonimmigrant visa, it may be presumed that the individual misrepresented their intentions when they applied for the visa.
- After 90 Days: If the same actions are taken more than 90 days after entry, there is generally no automatic presumption of misrepresentation, though immigration officers may still question the person’s intent.
The 90-day rule doesn’t automatically apply to all nonimmigrant visas, and the application can vary based on individual circ*mstances.
Why Should You Hire an Immigration Lawyer for the J-1 Visa to Green Card Process?
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.
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