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.
Understanding the Two-Year Home-Country Residency Requirement (212(e))
The Two-Year Home-Country Residency Requirement, known as 212(e), is a regulation that affects certain J-1 visa holders in the United States. This rule mandates that individuals who are subject to it must return to their home country for a cumulative total of two years after completing their J-1 program before they can apply for specific immigration benefits, including Green Cards or certain work visas like H-1B or L visas.
Impact on Green Card Applications
For J-1 visa holders subject to the 212(e) requirement, applying for a Green Card becomes significantly more complicated. They cannot change their status to permanent resident while in the U.S. until they fulfill this requirement. This restriction is designed to prevent “brain drain” by ensuring that participants share the skills and knowledge they gained in the U.S. with their home countries.
Waivers for the Two-Year Residency Requirement
In some cases, J-1 visa holders may apply for a waiver of the two-year residency requirement. Waivers can be granted under several circumstances:
- No Objection Statement: The home country government issues a statement indicating it does not oppose the waiver.
- Persecution: The individual can demonstrate that returning to their home country would result in persecution based on race, religion, or political opinion.
- Exceptional Hardship: The applicant must prove that returning home would cause exceptional hardship to a U.S. citizen or permanent resident spouse or child.
Applying for a Waiver
To apply for a waiver, individuals must follow these steps:
- Determine Eligibility: Confirm whether you are subject to the 212(e) requirement by checking your DS-2019 form or visa stamp.
- Gather Documentation: Depending on the waiver type, collect necessary documents such as a No Objection Statement or evidence of hardship.
- File Form DS-3035: Submit this form along with supporting documentation to the U.S. Department of State’s Waiver Review Division.
- Await Decision: After review, if approved, the recommendation will be sent to USCIS for final determination.
If a J-1 visa holder is not subject to this requirement, transitioning to another visa status or applying for a Green Card is more straightforward.
Steps to Switch from J-1 Visa to Green Card Through Marriage
Marriage to a U.S. Citizen or Green Card Holder
Marrying a U.S. citizen or Green Card holder provides a pathway to permanent residency. Here are the key steps involved:
- Legal Requirements for Marriage:
- Ensure all necessary documentation is prepared (e.g., identification and proof of legal eligibility).
- Marriages can be conducted either in the U.S. or abroad.
- Proving a Bona-Fide Marriage:
- It is crucial to demonstrate that the marriage is genuine and not solely for immigration benefits.
Filing Form I-130 (Petition for Alien Relative)
The U.S. spouse must file Form I-130 to establish the relationship:
- Required Documentation: Include marriage certificate and evidence of a legitimate relationship (photos, joint accounts, etc.).
Filing Form I-485 (Adjustment of Status)
If already in the U.S., the next step is filing Form I-485:
- Supporting Documents: Proof of lawful entry, medical exam results, and evidence of financial support.
If outside the U.S., consular processing will be required instead.
Biometrics Appointment
After filing, applicants must attend a biometrics appointment where fingerprints and photographs are taken for background checks.
Marriage-Based Green Card Interview
A critical step involves attending an interview:
- Preparation: Familiarize yourself with common questions and gather necessary documentation.
- Possible Outcomes: Approval, request for additional evidence, or denial may occur based on interview results.
Receiving the Green Card
Upon approval, the J-1 visa holder will receive their Green Card:
- Understand the differences between conditional vs. permanent Green Cards based on marriage duration.
Considerations for J-1 Visa Holders with a Two-Year Home-Country Requirement
For those subject to 212(e), fulfilling this requirement involves residing in their home country for two years before pursuing further immigration benefits.
Challenges and Common Pitfalls
Switching from J-1 to Green Card through marriage presents challenges:
- Proving marriage legitimacy can be difficult and may lead to accusations of fraud.
- Delays in processing I-130 and I-485 applications are common.
- Issues related to inadmissibility due to criminal history or financial documentation may arise.
How Long Does the Process Take?
The timeline for transitioning from a J-1 visa to a marriage-based Green Card involves several steps and can vary significantly based on individual circumstances. Generally, the entire process takes between 1.5 to 2 years when applying from within the United States. This includes filing Form I-130 (Petition for Alien Relative) and Form I-485 (Application to Adjust Status) concurrently, which can lead to a processing time of 9 to 13 months for both forms combined, depending on the specific USCIS service center handling the case.
Factors Influencing Processing Times
Several factors can either expedite or delay the process:
- Waivers: If a J-1 visa holder is subject to the two-year home-country residency requirement, they must first obtain a waiver before applying for a Green Card. The waiver process can take an additional 12.5 months if sent to the California Service Center.
- Backlogs: Current immigration backlogs can lead to longer wait times, particularly for applicants married to Green Card holders, who may need to wait for a visa number after I-130 approval.
- Completeness of Applications: Submitting complete and accurate applications with all required documentation can help avoid delays due to Requests for Evidence (RFEs).
After Submission
Once applications are submitted, applicants can expect:
- Receipt Notices: USCIS typically sends out receipt notices within two weeks of receiving the application.
- Status Updates: Applicants can track their case status online through the USCIS website.
Legal and Financial Considerations
Navigating immigration processes can be complex, making it advisable to work with an immigration lawyer. Legal fees vary but can range from $2,000 to $5,000, depending on the complexity of the case. Additionally, applicants should consider filing fees for Forms I-130 and I-485 (approximately $535 and $1,140, respectively), as well as costs associated with medical examinations, which average around $200-$500.
If subject to the two-year home residency requirement, costs for a waiver application may also arise. Furthermore, U.S. sponsors must file Form I-864 (Affidavit of Support) to demonstrate their financial ability to support their foreign spouse.
Travel and Work During Adjustment of Status
J-1 visa holders may face restrictions when traveling while their Green Card application is pending:
- Travel Risks: Traveling outside the U.S. during this period can jeopardize the application, especially if waiting for a waiver approval.
- Work Authorization: Applicants can apply for an Employment Authorization Document (EAD) while their adjustment of status application is pending by submitting Form I-765. This allows them to work legally in the U.S. while waiting for their Green Card.
After Receiving the Green Card
Once granted a Green Card, individuals gain certain rights and responsibilities:
- Rights: Permanent residents have the right to live and work in the U.S., travel abroad with certain limitations, and access public benefits.
- Conditional Green Card: If married less than two years at the time of approval, recipients will receive a conditional Green Card, which requires filing Form I-751 to remove conditions after two years.
Pathway to U.S. Citizenship
After holding a Green Card for at least three years (if married to a U.S. citizen), individuals may apply for U.S. citizenship through Form N-400.
Alternatives and Other Visa Options
If a J-1 visa holder cannot apply for a Green Card through marriage due to complications or personal circumstances, there are alternative visa options available:
- K-1 Fiancé Visa: For those planning to marry a U.S. citizen.
- Work Visas: Such as H-1B or L visas if they qualify based on employment.
- Family-Based Petitions: If they have other eligible family members who are U.S. citizens or permanent residents.
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.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the United States straightforward and successful. Whether you’re applying for a K-1 Visa or an F-1 Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you.
