If you’re a J-1 exchange visitor who recently 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. It’s important to understand how the rules of your J-1 visa — especially the home residency requirement — will affect when you can begin the application process and whether you can apply from within the United States (“adjustment of status”) or must apply from abroad (“consular processing”).
This guide will explain those rules and help you prepare for your journey toward permanent residence (and ultimately citizenship) in the United States.
The first step in determining your eligibility for a marriage-based green card is to find out whether the two-year “home residency requirement” applies to you.
The home residency requirement means that some J-1 visa holders (and their dependents on J-2 visas, if any) must return to their home country for a cumulative period of two years after completing their exchange program. They may still travel to and from the United States during this two-year period. But only after fulfilling this home residency requirement can they begin the green card application process — and they generally must apply from abroad.
The purpose of the home residency requirement is to benefit the exchange visitor’s home country by applying the skills and experience they acquired in the United States.
Does the two-year home residency requirement apply to you?
There are multiple ways to find out:
1. Check your visa. Toward the bottom of your visa (a document that’s affixed to a page of your passport), look for a note that indicates whether or not you’re subject to the requirement:
- If you are, the notation might read: “BEARER IS SUBJECT TO INA(212)E. TWO YEAR RULE DOES APPLY.” (This refers to the specific section of the Immigration and Nationality Act creating the requirement.)
- If you are not, the notation might read: “NOT SUBJECT TO TWO-YEAR RESIDENCE REQUIREMENT.”
IMPORTANT: Not all J-1 visas will contain this note. If you don’t find this note in your visa, you must try one of the other following methods instead.
2. Check your Form DS-2019. This form (officially called the “Certificate of Eligibility for Exchange Visitor (J-1) Status”) should indicate whether the requirement applies to you. You should have received this form from your program sponsor prior to applying for your J-1 visa. If you can’t locate your Form DS-2019, contact your program sponsor.
Here’s where you might find information about the requirement on Form DS-2019:
Source: U.S. Department of Homeland Security
3. Request a formal determination. You can ask the U.S. Department of State’s Waiver Review Division to issue an official “Advisory Opinion” stating whether the home residency requirement applies to you. This agency will review your request based on your J-1 program records and send a written determination by mail within four to six weeks of receiving your request. (Please visit the State Department’s website for complete instructions.)
4. Apply the rules. In general, the home residency requirement does apply if any of the following is true:
- Your J-1 program is entirely or partly funded by the U.S. government, your home country’s government, or an international organization that also receives funding from either of these governments.
- The skills you’re acquiring through your J-1 program are needed to improve your home country (see the U.S. State Department’s full list of skills by country).
- You are receiving graduate medical education or training, such as a fellowship or residency, through your J-1 program.
If the home residency requirement does apply to you, the next step toward a marriage-based green card is to obtain a waiver (see “Waiving the Home Residency Requirement” below) that will allow you to stay and complete the green card application process from within the United States.
If the requirement does not apply to you, then you’re ready to start the marriage-based green card process (see “Two Paths to a Green Card” below). Before submitting your paperwork, however, make sure that the 90-day rule (see below for details) will not affect you.
Boundless turns all the required government forms into simple questions you can answer online in under two hours. We make it easy to complete your green card application and avoid common problems. Read more about how we help you, or start your application.
To qualify for a waiver, you must do one of the following:
- Request a letter (officially called a “No Objection Statement”) issued by your home country’s embassy in Washington, D.C. stating that your government allows you to pursue U.S. permanent residence. (This is not an option for exchange visitors receiving medical education or training.)
- Demonstrate exceptional hardship to your spouse or child (if they are U.S. citizens or green card holders).
- Demonstrate fear of racial, religious, or political persecution in your home country.
- Gain support from a designated State Public Health Department (only available to exchange visitors receiving medical education or training) or a U.S. government agency that wants to hire you.
How to apply for a waiver
Step 1. Visit the State Department’s J Visa Waiver Online service, and complete Form DS-3035 (officially called the “J Visa Waiver Recommendation Application”). You will receive a case number and a printable Form DS-3035 with a unique barcode.
Step 2. Print and mail your completed Form DS-3035 to the appropriate State Department address (see the agency’s website for the list), along with the following items:
- Copies of all forms DS-2019 and IAP-66 (the DS-2019’s predecessor) that have ever been issued to you
- Two self-addressed, stamped legal-size envelopes
- Application processing fee (currently $120 and nonrefundable; you may only pay by check or money order made out to U.S. Department of State)
A State Department office in St. Louis, Missouri will then process the fee and forward your application to the Waiver Review Division in Washington, D.C.
Step 3. Submit your supporting documents, such as a “No Objection Statement,” to the State Department (visit the agency’s website for specific instructions for each type of supporting document and the appropriate mailing address). These documents are in addition to the items listed in steps 1 and 2 above.
IMPORTANT: There is an additional fee for processing a supporting document (Form I-612, officially called the “Application for Waiver of the Foreign Residence Requirement”) on the basis of exceptional hardship to a spouse or child.
The processing time for each type of supporting document varies between one to four months (sometimes longer). The State Department may also request additional information later, which can add more time to the process.
Step 4. After one month, you can check the status of your waiver request at the J Visa Waiver Online website, but your waiver request will not necessarily be approved by then (see “Step 3” for more details on document processing times).
If your waiver request is approved, you will no longer be subject to the two-year home residency requirement, and you can proceed with applying for your green card through your spouse who is a U.S. citizen or green card holder without leaving the United States.
The 90-day rule helps immigration officers determine whether a spouse seeking a green card was honest about why they originally wanted to travel to the United States. If you apply for a green card within the first 90 days of entering the United States, the U.S. government will presume that you “willfully misrepresented” your reason for coming — in other words, that you had no intention of returning to your home country to fulfill the two-year home residency requirement of your J-1 visa, for example.
You may still be able to convince the U.S. government that you originally intended to honor the terms of your J-1 visa, but it will be a challenge (please see this article for more details about the 90-day rule).
Calculating 90 days
To determine when the 90-day rule would apply, check your I-94 travel record (officially called the “Form I-94 Arrival/Departure Record”), find the date of your most recent entry to the United States, then add 90 days. For example, if the entry date on your I-94 is April 1, 2018, 90 days later would be June 30, 2018.
It’s important to note that the 90-day rule applies only to your most recent entry to the United States.
If, for example, you originally traveled to the United States on a B-2 visitor (tourist) visa and later returned to the United States on a J-1 visa, the 90-day rule would apply to the date you entered the United States on the J-1 visa, not the B-2 visa.
But let’s suppose that you entered on a B-2 visa. While you were still in the United States, you then applied and were approved for a J-1 visa before your B-2 visa expired. In this scenario, the 90-day rule would apply to the date you entered with a B-2 visa, not the date you obtained a J-1 visa.
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If you are not subject to the home residency requirement, if you can get it waived, or if you have satisfied it, you generally should be able to apply for a marriage-based green card from within the United States. The process of transitioning from a J-1 exchange visitor to a marriage-based green card holder, however, depends on whether your spouse is a U.S. citizen or green card holder.
Let’s review each scenario, including how to avoid common pitfalls:
You will need to follow the same procedure for most other spouses living in the United States and married to a U.S. citizen. You and your spouse must first file the following forms, typically at the same time (you can file these separately, but doing so is unusual in most cases):
- The family sponsorship form — or Form I-130 (officially called the “Petition for Alien Relative”) — to be completed and signed by your spouse who is a U.S. citizen
- The green card application — or Form I-485 (officially called the “Application to Register Permanent Residence or Adjust Status”) — to be completed and signed by you, the J-1 exchange visitor
As long as you married your spouse (who is a U.S. citizen) “in good faith” — meaning you did not marry just to obtain a green card, which you’ll need to prove to the U.S. government — your green card should arrive within 10 to 13 months from the time USCIS receives your application package.
Avoiding the 90-day rule
The best way to avoid the 90-day rule is to wait at least 90 days after last entering the United States before applying for a marriage-based green card (whether submitting forms I-130 and I-485 together or submitting Form I-485 separately). Form I-130 can be filed on its own at any time before or after the 90 days is up and will not trigger the 90-day rule — but again, it’s unusual to file these forms separately.
If you aren’t married already, it’s also generally a good idea to wait 90 days since your last entry to get married.
If you apply (file Form I-485) within 90 days of last entering the United States, the immigration officer evaluating your marriage-based green card application will presume “willful misrepresentation.” In other words, they will likely suspect that you had intended to live permanently in the United States when you applied for a temporary J-1 exchange visitor visa.
Proving that your plans changed
Overcoming the U.S. government’s presumption of “willful misrepresentation” can be challenging but not impossible. To prove that you did not misrepresent your original intention for obtaining a J-1 visa, you would need to provide documentation such as email correspondence between you and your program sponsor, detailing the official start and end dates of your training. (See this article for other ways to demonstrate to the U.S. government that you have commitments and strong ties to your home country.)
Working in the United States and traveling abroad
While your Form I-485 is pending, you must not travel outside the United States until you’ve obtained a travel permit (officially called the “Advance Parole Document”). Otherwise, the U.S. government will consider your marriage-based green card application “abandoned,” and you will need to start the application process all over again.
You also should not seek employment in the United States until you’ve secured a temporary work permit (officially called the “Employment Authorization Document,” or EAD). Once you receive this work permit, you’ll be able to continue working in the United States while you wait for your green card, even after your J-1 visa has expired. If your J-1 visa expires before your new work permit is approved, however, you must stop working during that gap period.
Boundless takes all the required government forms — including the work permit application — and turns them into simple questions you can answer online. Ready to start?
Path 2: If you’re married to a green card holder
There are different processes to follow if you’re on a J-1 visa and married to a green card holder.
First, your spouse who is a green card holder will need to file the family sponsorship form, or Form I-130 (officially called the “Petition for Alien Relative”). Once the Form I-130 is approved, you must wait to receive a visa number.
Without a visa number, you will not be able to apply for a marriage-based green card. Visa numbers are immediately available to spouses of U.S. citizens, but spouses of green card holders must wait. (If your spouse who is a green card holder becomes a U.S. citizen while you’re waiting for a visa number, you can then follow the process described in Path 1 above.)
How you’ll proceed from here depends on whether your visa number becomes available before or after your J-1 visa expires:
Staying in the United States
If a visa number becomes available before your J-1 term concludes, you’ll be able to stay in the United States and follow the same green card application process for most other spouses living in the United States and married to a green card holder. That means filing Form I-485 (officially called the “Application to Register Permanent Residence or Adjust Status”).
If the U.S. government approves this marriage-based green card application, you will receive a physical green card typically about 29 to 38 months after USCIS originally received your Form I-130.
Applying from Abroad
If a visa number is set to become available after your J-1 visa expires, and you can’t maintain a valid immigration status, you will need to leave the United States and follow the same green card application process for most other spouses living abroad and married to a green card holder. You will need to use the online green card application, or Form DS-260 (officially called the “Immigrant Visa Electronic Application”).
Upon approval of your marriage-based green card application, you can expect to receive receive your physical green card typically about 23 to 32 months after USCIS originally received your Form I-130.
Keep in mind that you will need to follow this particular process unless you can get an extension of your J-1 visa or obtain a different type of temporary visa (such as a B-2 visitor visa) to continue residing lawfully in the United States, in which case you must follow the process for spouses living in the United States and married to a green card holder.
Avoiding the 90-day rule
As in “Path 1” above, the best way to avoid triggering the 90-day rule in this case is to wait at least 90 days after last entering the United States before applying for a marriage-based green card (submitting Form I-485 only).
If you aren’t married already, it’s also generally a good idea to wait 90 days since your last entry to get married.
If your visa number will not become available prior to the expiration date of your J-1 visa, then it’s generally a good idea to apply for an extension of your J-1 status — or apply for a different type of visa (such as a B-2 visitor visa) — in order to stay in the United States while you wait for your green card.
Otherwise, you will need to leave the United States before your J-1 visa expires and continue the marriage-based green card process from abroad.
Working in the United States
You are more likely to face a period with no work permit if you’re married to a green card holder. That’s because it can take 19 to 25 months between filing the initial family sponsorship application (Form I-130) and the green card application (Form I-485). Only then can you also submit a work permit application, which can take another five months (in some cases longer) to be approved.
If your J-1 visa will expire before you can secure a new work permit, it’s best to plan on either seeking an extension on your J-1 visa or applying for another type of temporary work visa, such as an H-1B visa, if possible. Either will allow you to continue working without any gaps in employment between the expiration of your J-1 visa and the approval of your new work permit.
With Boundless, you get the confidence of an independent immigration attorney who will review all of your materials and answer any questions you have — for no additional fee. Learn more, or get started today.
Staying past your visa’s expiration date
If you “overstay” — that is, if you remain in the United States past the expiration date of your visa — you could be barred from re-entering the United States for several years, depending on how long you stayed in the United States without a valid visa.
If you’ve overstayed, it’s generally a good idea to leave the United States within six months following the expiration date of your J-1 visa. If you overstay for six months or longer, you will not be able to return to the United States for three years. If you overstay for more than one year, you will be barred from re-entering the United States for 10 years.
If, however, you’ve overstayed and your spouse who is a green card holder becomes a U.S. citizen before you leave the United States, you can generally then switch to the process described in Path 1 above. As a benefit of being married to a U.S. citizen, the amount of time you overstayed will be waived. It’s important to be aware, however, that new USCIS policy may increase risks of overstaying, even for spouses of U.S. citizens (please read full details in this policy alert).
Returning from a brief international trip after filing Form I-130
If, however, you file Form I-130, travel internationally with J-1 status afterward, and return with that same status, you may have trouble re-entering the United States. That’s because immigration officers at U.S. borders and ports of entry (where you would physically enter the United States) have much discretion when screening international travelers. If the immigration officer screening you discovers that you have a spouse in the United States, they are likely to suspect that you intend to live here permanently, which is inconsistent with the intended purpose of a temporary J-1 visa. In this situation, you may be denied entry to the United States or even get your J-1 visa revoked. You would then need to return to your home country.
If that happens, you would be able to continue the marriage-based green card process from abroad. But later, you’d need to convince the U.S. government that you did not intend to deceive immigration officers when you returned to the United States as a J-1 exchange visitor whose spouse is a U.S. green card holder.
With Boundless, you get the confidence of an independent immigration attorney who will review all of your materials and answer any questions you have — for no additional fee. Learn more, or start your application today.