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Technically, J-1 visa holders are not eligible for a U.S. green card. In order to obtain a J-1 visa, you need to demonstrate that you have ties to your home country (such as family or assets) and that you fully intend to return once your J-1 stint has ended.
This is because the J-1 is not considered a “dual intent” visa, which is a nonimmigrant visa that allows holders to pursue a green card without jeopardizing their nonimmigrant status. Other visas that are not dual intent are the TN, F-1, and the B-1 visa.
That said, it is not impossible to go from a J-1 to a green card. There are some ways to file an immigrant visa petition without violating your status. Additionally, there are some obstacles that you will have to overcome. However, these should be handled with care and should be done with the help of an experienced immigration attorney.
The first obstacle that we’ll cover is the home residency requirement. This requirement obligates almost all J-1 visa holders to return to their home country after their J-1 status has ended and remain there for two years before pursuing any further visas or green cards. After all, the whole idea behind the J-1 exchange visitor program is so that you can return home and bring what you learned in the U.S. to your country.
Since returning home often brings complications with it, you can apply for a J-1 visa waiver to circumvent this requirement. There are five ways to obtain this waiver and estimated J1 waiver processing times are noted alongside each path.
If you get your waiver, you will still run into problems filing your green card petition unless you can prove to the USCIS that your initial intent was always to leave after your J-1 period and that applying for your green card was not your plan all along. Because this can be a difficult thing to prove satisfactorily, it is advised to lean on the experience of your immigration attorney during this process.
Another hurdle you may need to overcome is the fact that many programs revoke their sponsorship of you as soon as you file a petition for a green card. In some cases, this is because the sponsoring program may want to avoid developing a reputation with the USCIS as a J-1 program that can be used to get a green card. If your sponsor removes its sponsorship, you may face being considered “out of status”, which could have serious consequences including being barred from future attempts to immigrate to the U.S.
To get a green card while on J-1 status, the applicant has three possible options concerning the waiver:
Additionally, to avoid the delicate nature of potentially violating your J-1 status, many people choose to change their status to a nonimmigrant visa with dual intent. Some popular options are the H-1B, L-1, or O-1 visas. You will have to factor in the processing time and money that is involved with getting a dual intent visa on top of the usual method of getting a green card.
Find out how your J-1 visa affects your taxes
The H-1B visa is highly sought after due to its many benefits. If you are interested in going from a J1 visa to H-1B visa you can apply for it at the beginning of the new fiscal year if the numerical cap has not yet been met. If the proposed employer is exempt from the cap, even better! You can file at any time and you can begin working as soon as your petition is approved.
What if your J-1 visa has a two-year home residency requirement? Unfortunately, if that’s the case you must go back to your home country for two years once you’ve completed your J-1 stint before you can apply for any type of work-based visa or green card unless you can qualify for the J1 visa waiver which we mentioned above through a No Objection statement, threat of persecution, extreme hardship or requested presence by a federal government agency.
If the J-1 holder is a physician and would like to obtain a green card, the applicant should first file for a J-1 waiver. Once the J-1 waiver has been approved, the physician has two options:
It is possible for physicians to have NIW and PERM applications pending at the same time.
The typical process is for applicants to obtain the PERM Labor Certification. This is the most common J-1 waiver green card process to receive an employment-based green card. The purpose of the PERM Labor Certification is to verify that the offered position cannot be completed by a qualified, able, and available United States worker.
If the PERM application is authorized, the U.S. employer is capable of filing for the I-140 on the J-1 visa holder’s behalf. The applicant must then file for an adjustment of status with the I-485 form. The J-1 waiver cannot be administered until the U.S. employer has submitted an application for labor certification through the PERM.
If the applicant decides to go with this option, he/she cannot submit the I-485 until the completion of the J-1 Conrad 30 requirements (if applicable). The I-140 and I-485 may be filed at the same time if the dates are current. You can check the latest Visa Bulletin for this information.
If the physician selects the NIW option, the applicant can petition without a U.S employer. The physician may also submit an I-140 at the same time. Though, the physician is only eligible to apply for the NIW if he/she has agreed to be employed in one of the areas:
The physician must be ready to work in one of the approved areas for 5 years in order to be considered for the J-1 waiver green card.
You can find out the status of a pending waiver application on the U.S. Department of State’s J-1 Visa Waiver Division page.
Simply enter your case number, and in the block “Re-enter Case Number”, enter your case number again for confirmation and click the “Submit” button. As a side note, it’s wise to wait about a month after submitting your waiver application before checking the status. If all is on track then when you click submit you will see that your application, supporting evidence and fee have all been received.
There are several factors that play into the processing time for the transition from a J-1 wavier to a green card.
The first is the time it takes you to get a dual intent visa (if this is the route you choose to take). This depends on the type of visa you choose as well as the circumstances surrounding your case. For example, if you choose to go for an H-1B visa, you will need to contend with the annual lottery and the waiting times that accompany that process. Speak with your immigration attorney to determine which route is best for your case.
Another factor is your PERM Labor Certification. If you choose to go with either the regular EB-2 or the EB-3 green card, you will need a PERM in order to petition. This involves having your employer run a relatively extensive ad campaign advertising for your position. This is to make sure that there are no qualified U.S. workers in the area that you would be displacing through your employment.
Under normal circumstances, the PERM processing time is about 60 days for the recruitment process and six months for the Department of Labor to reach a decision on your application. If your employer is audited or subjected to supervised recruitment, your J-1 waiver to green card processing time will be greatly increased.
The I-140 also takes an average time of about six months to process. If you would like to shorten this processing time, you can opt for premium processing. For an extra fee (payable by either you or your employer), premium processing will shorten your petition’s processing time to 15 calendar days. It is important to note that this service is not available for the EB-1C or EB-2 NIW green cards.
In any case, you will also need to wait until your priority date is current before filing to adjust your status. Your priority date is the day that the USCIS receives your I-140 petition. You will need to regularly check the visa bulletin released monthly by the Department of State to see if your priority date matches or passes the final action date given in your category.
Once that happens, your priority date will be considered current, a visa number will become available, and you will be able to file to adjust your status from J-1 waiver to green card status.
To adjust your status, you must file an I-485 form with the USCIS and wait an average processing time of six months. This step cannot be expedited with premium processing and is only available to those who are currently in the U.S. under a nonimmigrant visa like a J-1.
On the other hand, you can opt to go through consular processing. This may cut down on the cost and the processing time, but it requires you to make an appointment with the U.S. consulate or embassy in your home country and participate in a one-on-one interview. Work with your immigration attorney to determine if this is a better option depending on your situation.
Marriage is another way of transitioning from a J-1 visa holder to a green card holder. If you are married to a U.S. citizen or lawful permanent resident, your spouse can sponsor you to become a lawful permanent resident yourself. In this case, you will either have to obtain a waiver or wait until after the two-year requirement for the home country assignment has passed before beginning your green card process.
If you are not subject to the home country physical presence requirement, you can begin your J-1 to marriage-based green card process once your spouse is ready to sponsor your application.
The processing time will depend on whether you are married to a citizen or a lawful permanent resident. Unlike the employment-based green card application that uses the I-140 form, the marriage-based category will require your spouse to submit an I-130, Petition for Alien Relative. It must be submitted with these marriage-based green card supporting documents.
Married to Citizen: If you are married to a U.S. citizen, the processing time will likely be shorter. For the spouse of a U.S. citizen, there is always an available visa number. Because of this, you will be able to file both the I-130 and I-485 concurrently (at the same time). This means the USCIS will adjudicate both applications simultaneously, thereby shortening the entire process. Depending on the workload at the USCIS service center in charge of your case, you should be able to receive a decision on your petition within 10 to 13 months.
Married to a Lawful Permanent Resident: Unlike the spouses of U.S. citizens, a green card is not readily available to the spouse of a permanent resident. So, in most cases, after your spouse has filed the I-130 form, you will first wait for the petition to be approved. After the approval, then you will need to wait until a green card number is available to you before you can file your I-485 form. Depending on the backlog of applications ahead of you in the green card waiting line, you may need to wait for several months or years before you can receive your green card.
As mentioned above, the J-1 is not a dual intent nonimmigrant visa, which means you must prove that you have the intention of returning to your home country after your program. While you may get a green card through those various channels we have gone over, you are still required to prove that you had no intention of pursuing a green card before receiving your J-1 visa.
The 90-day rule is used by the USCIS officers to determine whether or not a J-1 holder applying for a green card had immigrant intent from the beginning of the application process. If you apply for a green card within 90 days of entering the U.S., that will raise a red flag suggesting that you lied in your application and you didn’t have any plans to return to your home country. You will need to convince the immigration officials that your decision to get a green card wasn’t premeditated but came due to unexpected changes in your personal circumstances. Needless to say, this can be very difficult to prove without the help of an attorney.
Because of this, J-1 visitors are always advised to allow at least 90 days to pass before applying for a green card. Your I-94 travel record will help you determine how long you have been in the United States. With the date, you can calculate the 90-day rule by adding 90 days to the most recent arrival date stamped on your I-94.
NOTE: If this is not your first time in the United States or the J-1 is not your first U.S. nonimmigrant visa, the 90 days must be calculated based on the most recent entry. Here is how it works:
Example 1: You originally entered the U.S. on a B-2 tourist visa, and after returning to your home country, you filed and received a J-1 visa. The 90-day rule will apply based on the date you reenter the U.S. on your J-1 visa, not on the initial B-2 visa. Example 2: You entered the United States on a B-2 visa, and while you are still in the U.S., you applied for and received a J-1 visa before the expiration of your B-2 visa. In this case, the 90-day rule would be the date you entered with your B-2 visa, not the date you received your J-1 visa.
Example 1:
You originally entered the U.S. on a B-2 tourist visa, and after returning to your home country, you filed and received a J-1 visa. The 90-day rule will apply based on the date you reenter the U.S. on your J-1 visa, not on the initial B-2 visa.
Example 2:
You entered the United States on a B-2 visa, and while you are still in the U.S., you applied for and received a J-1 visa before the expiration of your B-2 visa. In this case, the 90-day rule would be the date you entered with your B-2 visa, not the date you received your J-1 visa.
While your adjustment of status (I-485 form) is being processed, you should avoid traveling internationally until you have obtained a travel permit, which is officially known as Advance Parole Document. Without that, immigration officers may conclude that you have abandoned your green card application, which will require you to start the process all over again.
Similarly, you cannot work in the United States while your I-485 is pending until you have received a temporary work permit, otherwise known as Employment Authorization Document (EAD). If you have an EAD, you can continue working and living in the United States even if your J-1 status has expired.
If your J-1 status expires before an immigrant visa number becomes available, you will need to get a J-1 extension or apply to change your status to another nonimmigrant visa in order to continue staying in the U.S. while the green card application is pending.
Unfortunately, getting a J-1 visa extension or changing to another status isn’t always feasible. If you fail to do either, you will risk being flagged as being “out of status” if you continue living in the United States after the J-1 visa has expired. So, to avoid this, the only option would be to leave the U.S., return to your home country and continue the process through consular processing whenever a visa number is available for you. You will need to file a DS-260 application at the embassy or consulate in your country of residence to request an immigrant visa abroad.
The cost associated with making the switch from a J-1 waiver to a green card also depends on whether you choose to use consular processing or adjust your status.
If you choose to adjust your status, you and your employer will be responsible for the following fees:
If you opt to go through consular processing, here are the fees that you and your employer must pay:
Transitioning from a J-1 exchange visitor visa to a green card is a complex process. Getting a waiver for the home presence requirement, proving that your green card application wasn’t a preconceived idea, and several other intrigues surrounding the process require thoroughness. This is why you need the service of an immigration lawyer.
VisaNation Law Group has a team of highly experienced J-1 and green card immigration attorneys with excellent track records of helping many exchange visitors transition to lawful permanent resident. Our immigration lawyers are capable of advising you on the decisions best suited for the qualifications and expectations of the visa.
You can schedule a consultation with VisaNation Law Group today by simply filling out this consultation form.
