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 visa 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.
If the home residency requirement does apply to you, the next step toward a marriage-based green card is to obtain a waiver, that will allow you to stay and complete the green card application process from within the United States. Boundless has put together a detailed guide on who qualifies for a J-1 visa waiver and how to apply.
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.
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.
Do you have confidential questions about how your situation might affect your green card application? With Boundless, you get an independent immigration attorney who can help you understand your options. Learn more, or get started today.
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:
Firstly, you must first submit the following forms, typically at the same time (you can file these separately, but doing so is unusual in most cases):
- Form I-130 (officially called the “Petition for Alien Relative”) to prove the family relationship. This form must be filled out and signed by the U.S. citizen spouse.
- Form I-485 (officially called the “Application to Register Permanent Residence or Adjust Status”) — this is the green card application and must be completed and signed by the J-1 visa applicant.
Once you’ve submitted the above forms, you should receive your green card – months after the U.S. government receives your application.
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.
Scenario 2: 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 to 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 to 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.
Boundless + RapidVisa can complete your J-1 application, help you prepare for your visa interview, and answer any exchange visa questions you may have. Learn more about what we do to help.
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.
J-1 visa overstay to marriage
If you overstay on your J-1 visa (remain in the U.S. past the expiration date of your visa) you could be barred from re-entering the country for years, depending on how long you stayed in the U.S. without a valid visa.
If you’re out of status, plan to leave the U.S. within six months of the expiration date of your J-1 visa. If you remain in the country for more than six months, you won’t be permitted to re-enter the U.S. for three years. If you overstay for longer than one year, you’ll be barred from re-entering for 10 years.
If you overstay on a J-1 visa and you’re married to a U.S. citizen, the amount of time you overstayed will be waived and you can follow Path 1 above. If you overstay on a J-1 visa and you’re married to a green card holder who becomes a U.S. citizen before you leave the U.S., you can generally also switch to the process described in Path 1 above.
Returning from a brief international trip after filing Form I-130
However, if you submit Form I-130, travel internationally with J-1 status afterward, and return on that same visa, you may have difficulty re-entering the U.S. If the immigration officer at the border or port of entry learns that you have a spouse in the U.S., they may assume that you plan to live in the country permanently, which is inconsistent with the intended purpose of a temporary J-1 visa. In this situation, you may be barred from entering the United States or even have 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 you would need to prove to the U.S. government that you did not plan to move permanently to the U.S. as a J-1 exchange visitor.
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.