J1 to Green Card - An Overview
It is possible to transition from a J-1 to a green card, but not everyone is eligible to do this. Some people are ineligible at the moment, but they could become eligible at a later date. Recipients of the J-1 visa are under certain restrictions from applying for a green card in the United States. One restriction is due to the reason that visitors came to the U.S. in the first place, and the other restriction is the two-year foreign residency requirement.
The core problem: J1 Visas have a two-year foreign residence requirement
Some J-1 visa holders are required to return to their home countries and remain there for a period of two years. Visitors must not neglect to do this or else they will not be able to apply to become permanent residents in the future. Those who are subject to this rule include the following:
- An agency in your government or in the United States' government paid for your program in whole or in part. You may also have been funded by an international organization that receives money from the US government or your own government.
- It has been designated that the visitor's home country doesn't have enough people with his or her specialized knowledge or skill set living within its borders, and the visitor acquired this knowledge or skill set through the J-1 program.
- The visitor was trained as a medical resident or an intern in the United States through the J-1 program.
The consulate in each country determines whether or not a resident meets the requirements for the two-year residency program. The determination would have been marked on the visitor's form DS-2019 with an endorsement. Visitors can also check their visa stamps where they will find a statement explaining that this restriction applies.
If visitors discover that they must meet the two-year foreign residence requirement but are unable or unwilling to do so, they have the option of applying for a waiver that would eliminate the need to complete this restriction. Visitors have several reasons that they may be able to do this.
Immigrant intent means that a visitor to the US has the intention of remaining in the US even though he or she is entering the country on a temporary visa. A J-1 visa holder is not allowed to have immigrant intent. This will mean that visitors must prove that they intend to return to their home countries at the end of their programs when they are applying for their J-1 visas.
Visitors may change their plans after some time has passed. They may be eligible to apply for permanent residence, but they will have to prove that they did not have any intention of remaining in the United States when they applied for the J-1 program. Their desire to remain in the US must be due to circumstances that were unexpected.
One reason that a visitor who had no immigrant intent in the beginning would have immigrant intent at a later date is because she is now married to a citizen of the United States or a green card holder. This visitor may apply for a marriage-based green card.
Visitors may determine whether or not they must return home for two years in the manner described above. They also have the option of asking the U.S. Department of State's Waiver Review Division to offer an "Advisory Opinion." This will state definitively whether or not the residency requirement applies to a visitor. The Waiver Review Division will examine the visitor's J-1 program records and give the visitor an answer by mail within four to six weeks.
A visitor's employer may be willing to sponsor him or her. The best plan in this case is for the visitor to change his J-1 status to H-1B before taking any further action. Visitors with H-1B status may have immigrant intent.
A visitor will also have to contend with the fact that his or her program sponsor may not appreciate the fact that he or she is seeking permanent residence. Sponsors may become concerned that the USCIS will regard its sponsorship of visitors with suspicion. The USCIS might begin to believe that the only reason people apply with a particular sponsor is to obtain a green card, so sponsors will revoke J-1 visa status to avoid this characterization. Visitors will be considered to be "out of status" when this happens, and this could mean that these particular visitors would not be able to come to the US in the future.
What Is a J-1 Waiver?
A J-1 waiver will allow visitors to remain in the United States while the green card application process is ongoing. There are three things that you can do to have the two-year residence requirement waived. You will only need to complete one of the following three actions:
- Visit the embassy of your home country and ask for a "No Objection Statement." This statement will give you permission to pursue permanent residency in the United States. Anyone with a J-1 exchange visitor visa for the purpose of obtaining medical education and training will not be eligible.
- You must be able to demonstrate that your spouse or children will experience a significant hardship if you are forced to leave for two years. Your spouse and children must be green card holders or citizens in this instance.
- You must be able to prove that you will be persecuted for your political affiliations, religion or race in your home country.
A J-1 exchange visitor in the United States for medical education or training may obtain the support of a designated State Public Health Department. Others may ask the government agencies that wish to offer them jobs to vouch for them.
Applying for a Waiver
The U.S. Department of State has a J Visa Waiver Online Service where visitors can fill out the J Visa Waiver Recommendation Application or form DS-3035. This will provide visitors with DS-3035s that they can print. They will find a unique barcode and a case number printed on these documents.
The next step is to mail the completed DS-3035s plus copies of all of the DS-2019s and IAP-66s that the visitors have received, two self-addressed, stamped envelopes in legal size, and a check or money order for the application processing fee in the amount of $120. This document must be payable to the U.S. Department of State, and it will not be refunded to the visitors.
The fee will be processed once the package arrives at the St. Louis, Missouri, Department of State. The Department of State will send the package to the Waiver Review Division in Washington, D.C.
Supporting documents will need to be sent to the U.S. Department of State. Visitors may check the department's website to find the appropriate mailing addresses for each particular supporting document.
Visitors who are requesting a waiver because of the hardship that would come to their spouses or children also need to submit form I-612. This form is called the "Application for Waiver of the Foreign Residence Requirement," and it requires that visitors pay an additional fee.
The processing time can vary because the U.S. Department of State may ask for additional information from visitors. It takes between one and four months to process these documents depending on the type of supporting documentation that the visitors present.
Options for Transitioning to a Green Card from a J-1
Visitors can do one of three of the following:
- Visitors may submit the j1 waiver and the immigrant petition at the same time. They also need to present evidence that their intention was not to obtain permanent residence when they applied for their J-1 visas.
- Visitors may also submit their applications for their J-1 waivers and wait until they receive an answer. They can submit the immigrant petitions after their waivers have been approved.
- Visitors may submit their immigrant petitions, wait for approval and then submit their j1 waivers.
Some newcomers decide to go from the J-1 visa to a visa for those who do not plan to become permanent residents. These types of visas have a dual intent option, and they keep a visitor from unintentionally violating his J-1 visa status. People opt to apply for the O-1 visa, L-1 visa, and H-1B visa under this circumstance.
Physicians need to take a different track to obtain permanent residence. The first thing physicians need to do is apply for the J-1 waiver and then the physician will have two different options after his or her J-1 waiver application has been accepted. These options are the following:
- Their American employers will need to file for the PERM Labor Certification.
- They will need to file for an EB-2 green card with the National Interest Waiver.
Physicians do not have to choose if they would like to take both options. It is permissible for them to have applications out with PERM and NIW at the same time.
The visitor's employer will have the duty of filing for the I-140 after the PERM is approved. It will be the visitor's turn to get a form I-485 that will allow him to apply for an adjustment of his status. This cannot be done until after J-1 Conrad 30 requirements have been completed.
The physician who opts to take advantage of the NIW option will be able to submit it without the aid of an American employer. The physician can also submit the I-140 at the same time.
The only physicians eligible to apply with the NIW option are those who wish to pursue careers in an area that has a shortage of healthcare providers, an area in mental health, a location that is currently underserved by the medical community, or a U.S. Veterans Affairs facility. Physicians are required to commit to a five-year stint within the areas listed above in order for their green cards to be approved.
The Marriage Option
If a J-1 exchange visitor marries a U.S. citizen or permanent resident, he or she can use this new circumstance to obtain a green card. The "marriage visa" will allow the visitor to live with his or her spouse in the United States.
Although some visitors are married to citizens and permanent residents, they may be subject to the two-year residence requirement. The J-1 exchange visitor and his or her dependents with J2 visas will be required to leave the US for two years. They are not entirely barred from the country during this time period, but they cannot begin the green card application process until the two years have passed. They must start the process in their home countries at that time.
Visitors are under this requirement because they learned valuable skills and obtained knowledge on the exchange program that would benefit their home countries. This two-year time gives them the opportunity to allow their home countries to reap the benefits of the knowledge and skills they gained in the US.
Find out whether or not the two-year residency applies to you before you get started on this new journey. You can do this in the same manner as was described above. You can also check your DS-2019.
Once visitors learn that they are under the obligation to return home after their programs are over, they will need to obtain a waiver that releases them from this commitment so that they can apply for permanent residence in the United States.
The marriage-based green card process can immediately begin if the two-year residence requirement does not apply. There is, however, a 90-day rule that may apply.
The 90-Day Rule
The 90-day rule allows immigration officers to determine whether or not a J-1 visa holder told the truth about the reason he or she wanted to come to the United States. A visitor who applies for permanent residence within 90 days of entering the country will be determined to have been dishonest about his or her reasons for coming to the US. Immigration officers will assume that the visitor had no intention of returning to his or her home country for two years.
Some people have been able to convince government officials that they were intending to return home, but this will be extremely difficult to do.
The I-94 travel record will help visitors determine how long they have been in the country. Take the most recent arrival date stamped on this document and then add 90 days. Visitors must make sure that they only use the most recent date when they take this step.
A visitor may have entered the United States on a B-2 visa and then returned home. This same visitor entered the US on a J-1 visa at a later date. The 90-day rule should be calculated based on the most recent date stamped on the J-1 visa.
Another visitor entered the United States on a B-2 visa. He applied for the J-1 visa while in the country and received it. This visitor would be able to use the most recent date stamped on his B-2 visa.
Two Different Ways to Obtain a Green Card
A visitor who marries a citizen of the United States may apply to become a permanent resident. Two different forms are required:
- The first is the family sponsorship form. This is also known as the "Petition for Alien Relative" or I-130, and the spouse is the one required to fill this document out and submit it if he or she is a US citizen.
- The second is the green card application. This document is also known as the "Application to Register Permanent Residence or Adjust Status" or I-485, and the visitor is the one who must complete it.
Visitors will need to convince the US government that they did not marry their spouses solely for the purpose of becoming permanent residents. Their cards will arrive in the mail between 10 and 13 months after the USCIS reviews and approves their applications.
Visitors can also become permanent residents if they are married to permanent residents.
The spouse will need to have his or her green card. He or she can obtain the family sponsorship form or I-130 and fill it out and submit it to the USCIS. Once the Petition for Alien Relative has been approved, the visitor's spouse will receive a visa number in the mail.
The visa number is necessary to apply for the marriage-based green card. If a visitor is the spouse of a US citizen, he or she will receive a visa number right away. This is not the case for spouses of permanent residents. A spouse is welcome to follow the first path for obtaining permanent residency for his or her spouse once he or she becomes a citizen.
A visitor can follow the path of a spouse living in the US with a permanent resident if he receives a visa number before the expiration date on his DS-2019. Visitors must return home if the program end date on the DS-2019 will come before he or she receives a visa number. The visitor will need to apply for a new visa if this is likely to occur.
The J-1 Visa Extension Process
Visitors have the option of applying for a J-1 visa extension that would keep them in the country until after their current expiration dates pass. Research scholars have permission to apply for a J-1 extension, but they must be in valid J-1 status, and their sponsors must have filed the DS-2019 for them first.
Research scholars, college professors, school teachers, specialists, au pairs, government visitors, medical residents, summer workers, business trainees, international visitors, college and university students, and flight aviation trainees frequently have their J-1 visas extended.
You may apply for J-1 visa extension if you belong to any of the groups listed above. You will need to gather several documents for the process, and they include the following:
- Visitors must present evidence that they can support themselves for one year if their sponsoring programs are not going to be paying their tuition, fees, or living expenses.
- They must provide the USCIS with an excellent explanation for why they need to extend their stay in the country. It would be to wait for their visa numbers to arrive in this case.
- They need to complete and submit forms DS-2019, I-94, and IAP-66.
- They need to present proof of health insurance for themselves and their dependents for the extra time that they will be in the country.
- They must present any supplementary documents.
- A SEVIS fee will not be required at this time.
Visitors will receive a new DS-2019 that contains a new expiration date after the J-1 visa extension is accepted. SEVIS will also record this new date. It isn't necessary to file separate applications for each dependent because just one application will cover the J-1 visa holder and his or her dependents with J-2 visas.
What to do if you already extended your visa once
A J-1 visa extension is extremely difficult to qualify for if you have already received one J-1 visa extension. The circumstances must be extraordinary and remarkable for the U.S. Department of State to authorize a new visa after a visitor had one extension. The program sponsor will be the one to request a second visa extension of the Department of State.
Visitors would need to provide a very thorough explanation for why they need to remain in the United States for a longer period of time. They would also need to present even more supporting documentation. The fee for this process will be $246. Visitors need to contact USCIS if they need to extend their time in the US during the 30-day time period.
Visitors are permanent residents after they receive their green cards. This means that they no longer need to apply for an employment authorization document because their green cards will provide employers with the proof that they need to hire them.
Expected Processing Times and Timelines
Visitors will have to take several steps during the processing time for the waiver of the J-1 visa until they become permanent residents. The steps will be as follows:
- Visitors may try to obtain a dual intent visa. How much time this will take will depend on the visitor's circumstances and the type of visa. The processing time depends on the annual lottery if you are seeking an H-1B visa.
- There is also the PERM Labor Certification. The EB-2 green card and the EB-3 green card are options that require the visitor to obtain a PERM to go forward with the process. Employers are required to place extensive ads in newspapers and online in pursuit of a candidate for the visitor's desired position. This is to ensure that the visitor would not be taking a job from a qualified American citizen.
- The processing time usually takes 60 days while the recruitment process is ongoing. The Department of Labor will take six months to decide whether or not to accept the visitor's application. Some employers are audited by the government and must be supervised when they recruit new employees. Visitors with jobs with employers such as these will face much longer processing J-1 visa to green card waiver times.
Costs and Fees
Visitors can transition from the J-1 visa to permanent residence in two different ways. They can also decide whether or not they want to take advantage of consular processing and make a status adjustment.
An adjustment of status requires the joint cooperation of the visitor's employer and the visitor. This means that they will both be responsible for paying the following fees:
- The I-140 has a basic filing fee of $700.
- The I-485 fee ranges from $750 to $1,450.
- The biometrics fee is $85.
Consular processing requires the visitor and the visitor's employer to pay the following fees:
- The $700 fee for the I-140.
- The DS-260 online immigrant application requires a fee of $230.
Some applicants also need to pay an $85 biometrics fee and an $88 affidavit fee.