If you’re currently on a J-1 visa and have married a U.S. citizen or green card holder (permanent resident), you can apply for a marriage-based green card to live with your spouse in the United States. However, there are important factors to consider, such as your J-1 visa’s home residency requirement, which can impact when and how you apply for your green card.
This guide will explain the necessary steps, rules, and considerations to help you understand how to navigate the process from J-1 to a green card, making your path to permanent residency (and eventually citizenship) as smooth as possible.
The Home Residency Requirement
Before you apply for a marriage-based green card, it’s important to determine if the “home residency requirement” applies to you.
Some J-1 visa holders (and their J-2 dependents) must return to their home country for a total of two years after completing their exchange program. While you can travel to and from the U.S. during this period, you must fulfill this requirement before applying for a green card, and you typically need to apply from abroad.
The purpose of this requirement is to ensure that exchange visitors contribute the knowledge and skills they gained in the U.S. to their home country.
If you’re subject to this home residency rule, you may need to apply for a waiver. A waiver allows you to stay in the U.S. while you apply for your green card. If the home residency requirement doesn’t apply to you, you can proceed directly with your marriage-based green card application.
The 90-Day Rule
The timing of your green card application is crucial. Immigration officers follow a guideline known as the “90-day rule” when assessing marriage-based green card applications.
This rule helps officers determine whether you were truthful about the reason you entered the U.S. If you apply for a green card within the first 90 days of entering the U.S., the government may assume you intended to live in the U.S. permanently all along, which could impact your application.
Understanding the 90-Day Rule
To calculate whether the 90-day rule applies, check your I-94 arrival record to see the date you entered the U.S. Add 90 days to that date. For example, if you entered on April 1, 2024, the 90-day rule would apply after June 30, 2024.
Importantly, the rule applies to your most recent entry into the U.S. If you entered on a different visa type (like a B-2 tourist visa), the 90-day rule applies to that entry date, not your subsequent J-1 visa entry.
Two Paths to a Green Card
If the home residency requirement doesn’t apply to you, or you’ve received a waiver, you can apply for a marriage-based green card from within the U.S. The application process depends on whether your spouse is a U.S. citizen or a green card holder.
Scenario 1: Married to a U.S. Citizen
If your spouse is a U.S. citizen, you’ll need to submit the following forms:
- Form I-130 (Petition for Alien Relative): This form proves your relationship with your U.S. citizen spouse.
- Form I-485 (Application to Register Permanent Residence or Adjust Status): This is your green card application.
In most cases, these forms can be submitted together, although filing separately is possible.
Avoiding the 90-Day Rule
To avoid triggering the 90-day rule, wait at least 90 days after your last entry into the U.S. before applying for a green card. If you file within 90 days, the government may assume you misrepresented your original reason for entering the country on a temporary J-1 visa. You may still be able to prove your case, but it’s a challenge.
Proving Your Original Intent
If you need to prove you didn’t intend to stay permanently when you entered on the J-1 visa, you may need to provide supporting documents like email exchanges with your program sponsor or evidence of strong ties to your home country.
While waiting for your green card, you should not travel abroad without an Advance Parole Document (travel permit). Otherwise, your application could be considered abandoned. Similarly, don’t work in the U.S. until you get an Employment Authorization Document (EAD), which allows you to work while waiting for your green card.
Scenario 2: Married to a Green Card Holder
If your spouse is a green card holder, the process is a bit different. First, your spouse must file Form I-130 to begin the family sponsorship process. Once approved, you’ll need to wait for a visa number to become available before proceeding with your green card application.
If your visa number is available before your J-1 visa expires, you can stay in the U.S. and apply for a green card through Form I-485. If the visa number is available after your J-1 visa expires, you’ll need to leave the U.S. and complete the process through Consular Processing.
Avoiding the 90-Day Rule (Spouse of Green Card Holder)
Just like in Scenario 1, it’s best to wait at least 90 days after your most recent entry into the U.S. before applying for a marriage-based green card.
Work Permits and Employment
While waiting for your green card, you may experience a period without a work permit. For spouses of green card holders, the wait can be longer than for spouses of U.S. citizens. It can take several months before you’re eligible to apply for a work permit (EAD).
If your J-1 visa expires before your new work permit is approved, you’ll need to seek an extension of your J-1 visa or apply for another type of work visa to continue working without interruptions.
Special Issues
J-1 Visa Overstay and Marriage
If you overstay your J-1 visa and remain in the U.S. without a valid status, you may be banned from re-entering the U.S. for several years. In addition, If you overstay for more than 180 days but less than one year, you could be banned for three years. If you overstay for more than one year, the ban could be ten years.
However, if you overstay and marry a U.S. citizen, the overstay is waived, and you can proceed with the green card application process. If you’re married to a green card holder who later becomes a U.S. citizen, you may also be able to switch to the process for spouses of U.S. citizens.
Returning from International Travel After Filing Form I-130
If you file Form I-130 and then travel abroad with your J-1 visa, there could be complications when returning to the U.S. Immigration officers may suspect that you intend to stay permanently, which could result in denial of entry. If this happens, you’ll need to continue the marriage-based green card process from abroad.
Changing your status from a J-1 visa to a green card through marriage can be a complex process with important timing and legal considerations. Whether you’re married to a U.S. citizen or green card holder, make sure you understand the rules around the home residency requirement, the 90-day rule, and work permits. With careful planning and the right guidance, you can navigate the process and move forward with your path to permanent residence.
