The United States is a land of opportunity for those looking forward to stay permanently in the USA. The US welcomes foreign scholars, professors, and researchers to enrich the technological and scientific communities in the United States by bringing innovative ideas to solve the world’s urgent problems. This is done through the J-1 visa.
J-1 visas are non-immigrant visas that allow exchange visitors to work or study in the United States in programs that promote knowledge, skills, and cultural exchange. The beneficiaries are highly skilled temporary workers or students who have entered the United States under the auspices of the J-1 visa.
The challenge for them is how to stay permanently in the USA. If you have a valid J-1 visa and have lived in the US, you may be motivated to apply for permanent residency. However, J-1 visas do not provide a direct pathway to green card status. Since J-1 visas are not considered to be a dual intent type of visa.
To be issued a J-1 visa, you must demonstrate ties to your home country (i.e., family or property) and fully intend to return once your J-1 visa ends. J-1 visa holders are generally not eligible for green card status, which enables them to stay permanently in the USA.
However, this does not mean that transitioning from J-1 status to green card status is impossible. In fact, it is possible, and it does not violate immigration law or anyone’s status. However, visa holders must face some challenges. This is a complicated process and should be managed by a team of professionals to ensure a successful outcome and stay in the United States.
If you are on a J-1 status and want to stay permanently in the USA, you should understand what you need to do. Here is how to go about achieving this goal.
J-1 visa restrictions
Transfers from J-1 visas to green cards are possible, but not all individuals are eligible. Some individuals are currently ineligible, but they may become eligible at some point in the future.
J-1 visa beneficiaries are subject to certain restrictions when applying for green cards in the USA. One of these restrictions is based on the origin of the visitor’s stay in the USA. The second restriction is the requirement of two years of foreign residency.
The two-years rule
Some holders of J-1 visas must return to their home country and stay there for two years. Visitors are required to do this otherwise, they will not be eligible to apply to stay permanently in the USA. Some of the reasons for this are:
- Your program was paid for in full or in part by an agency of your government or the United States government.
- You may have been funded by a foreign organization that receives funds from the United States government or your government.
- Your home country does not have enough people with specific knowledge or skills living within its borders.
- You have been trained in the United States as a medical resident (resident) or an intern (physician-in-patient) through the program.
Your consulate in each country will determine whether you meet the requirements for a two-year residency. The determination would be marked on your visitor’s form DS-2019 with an endorsement. You can also check your visa stamps, where you will find a notice stating that this restriction is applicable to you.
If you find that you need to meet the two-year foreign residence requirement but cannot or do not wish to do so, you can apply for a waiver that will remove this restriction. There are several reasons why you might be able to do so.
The danger of seeking green cards for J-1 visa holders
J-1 visitors will have to deal with the fact that their program sponsor may not like the fact that they are looking for ways to stay permanently in the USA. Sponsors may worry that USCIS will view their sponsorship of J-1 visitors suspiciously.
The USCIS may start to think that the only reason someone applies with a certain sponsor is to get a green card. Sponsors will take steps to prevent this from happening. J-1 visa status may be revoked. J-1 visitors may be considered “out of status” when this happens.
This could mean that those particular visitors will not be able to immigrate to the US.
J-1 visa and immigration intent
Immigrant intent is a term used to describe a person who immigrates to the US with the intention of staying in the country, even if they are entering on a visa that allows them to stay temporarily. J-1 visa holders cannot have immigrant intent, which means that they will need to show that they plan to go back to their home country when they apply for their J-1 visa.
After a certain period, visitors may have changed their plans. They may qualify to stay permanently in the USA, but will have to show that they had no such intention at the time they applied for the J-1 visa. They must have an unexpected reason to want to stay permanently in the USA.
Examples of these situations are as follows:
1. Through marriage.
a visitor who did not have immigrant intent initially may now have immigrant intent because she is married to a US citizen or green card holder, and they may apply for a marriage-based green card.
2. Through employment.
A visitor’s employer may be interested in sponsoring him/her. The best course of action in this situation is to change their J-1 status into an H1-B prior to taking any further steps. H1-B visa applicants may have immigrant intent.
3. Through family.
Green card sponsorship for J-1 visa holders can be done by immediate family who are US citizens or permanent residents. Foreign spouses, children, fiancés, parents, or siblings can also be sponsored. A green card is usually issued to an individual who has resided in the US for a minimum of 90 days.
The 90-day requirement ensures that the individual has not violated their nonimmigrant intent while applying for the green card. To change your status from J-1 to green card under this head, you can:
- Submit an alien relative petition to USCIS.
- File I-485 applications to register your permanent residence or adjust your status if you live in the United States.
- Submit an electronic DS-260 visa application if you live outside the United States.
4. Through investment.
The EB-5 visa grants an opportunity to stay permanently in the USA by investment for the holder of a J-1 visa. Foreign investors can invest a minimum of $500,000 in US businesses that create at least 10 full-time jobs for US workers. J-1 visa holders receive a green card with a two-year conditional stay if they successfully apply for an EB-5 visa.
The conditions of the green card can be removed, allowing them to become legal permanent residents for 10 years. To explore this option, here are the four steps to transition from a J-1 visa to an EB-5 visa to stay permanently in the USA:
- File an I-526 immigrant petition to the United States Citizenship and Immigration Services by an alien investor.
- Complete a DS-260 immigrant visa application online if you are outside of the United States.
- Submit an I-485 application to become a permanent resident.
- File an I-829 petition by an investor to remove conditions on permanent resident status to obtain a 10-year green card.
Processing time
It takes between 18 and 30 months to process a change in status from a J-1 visa to a green card to stay permanently in the USA. The processing time depends on several factors, including the type of green card you have applied for, your country’s priority date, and your service center.
Changing from a J-1 visa to a green card visa may take longer for an applicant from China and an applicant from India who has more than 10 years of backlog in their immigrant visa application.
The advisory opinion
Visitors can decide whether they need to return home for the two-year period outlined above. They can also request an “Advisory Opinion” from the US Department of State’s Waiver Review Division.
This opinion will determine whether a visitor is subject to the residency requirement. The Waiver Review Division will review the visitor’s J-1 program record and provide an answer by mail (within four to six weeks).
The J-1 waiver
With a J-1 waiver, you can stay in the US while your green card application is being processed. There are three steps you can take to have the requirement of two years of residency waived:
- Visit your home country’s embassy and request a “No Objection Statement.” This statement grants you permission to stay in the United States for the duration of your visa.
- Require proof of significant hardship for your spouse or children should you be forced to return to your home country for two years. Your spouse or children must be a green card holder or a citizen in this case.
- Show that you will be harmed in your home country for your political affiliation, religion or race.
J-1 exchange visitors in the US for medical training or education may be sponsored by a state Public Health department. Others may seek sponsorship from government agencies that are interested in recruiting them.
Get help!
Moving from the J-1 exchange visa status to staying permanently in the USA can be stressful, exhausting, and time-consuming, but it is worth it. Now that you know more about the green card options for J-1 visa holders, you can get in touch with us at Gehi and Associates.
We will evaluate your qualifications and needs. We will also help you find the right green card solution for your immigration situation.
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