Many Americans and lawful permanent residents are married to foreign citizens. As a student exchange visitor on a J-1 visa, it's possible to meet and fall in love with U.S. citizens and permanent residents during your time in the United States. If you marry someone who's a U.S. citizen or green cardholder, you can get a green card. In this article, we explain what the marriage green card process is like depending on your spouse's U.S. immigration status, and whether or not you've overstayed your visa. We'll also discuss some things you should consider before filing your application, like the home residency requirement and the 90-day rule.
Most people traveling to the United States as citizens of another country will need to obtain a visa before entering the United States. You can get a nonimmigrant visa for temporary stay or an immigrant visa for permanent residency.
The J-1 visa program is an educational and cultural exchange visitor visa program. It provides nonimmigrant visas for foreign nationals participating in U.S.-based exchange visitor programs. J-1 exchange visitors include au pairs, camp counselors, government visitors, interns, physicians, professors, research scholars, short-term scholars, specialists, college and secondary school international students, summer work travelers, international visitors sponsored by the U.S. Department of State, teachers, and trainees.
Before changing your status from the J-1 visa category to the marriage-based green card category, there are a few things you need to know to make sure that you’re following proper U.S. immigration law procedures.
Suppose you have exchange visitor status and are applying for a marriage-based green card. In that case, you’ll first need to review any of your exchange program requirements, such as the “home residency requirement” (also known as the two-year home country physical presence requirement). The home residency requirement applies to some J-1 visa holders (and any of their dependents on J-2 visas).
If you have a home residency requirement, you must return to your home country for two years after finishing your exchange visitor program in the United States. The condition exists so that J-1 visa holders can return home and contribute any new knowledge, skills, or experience they gained in the United States. During these two years, you can still travel to and from the United States, but you’ll need to spend a cumulative period of two years in your home country. After you complete the home residency requirement, you will be eligible to apply for a green card if you qualify. Most green card applicants with home residency requirements will need to apply abroad through their local U.S. consulate.
You can find out if the two-year home residency requirement applies to you by checking your J-1 visa stamp. Your visa stamp is in your passport. The visa stamp will contain a note that states whether you need to follow the two-year home residency requirement. If you need to follow the home residency requirement, your visa will say, “Bearer is subject to INA(212)E. Two year rule does apply.”
Note that not all J-1 visas indicate whether you have a home residency requirement. If your visa does not say anything about a home residency requirement, you should check your Form DS-2019. Form DS-2019 is your “Certificate of Eligibility for Exchange Visitor (J-1) Status.” Before you applied for your visa, your program sponsor should have given you this form. If not, you should contact your program sponsor for a copy. The form will indicate whether you have a home residency requirement.
If you’re still unsure if you have a home residency requirement, you can request a formal determination from the U.S. Department of State. The U.S. Department of State’s Waiver Review Division can send you an “Advisory Opinion.” The Advisory Opinion will note whether you have a home residency requirement. The Waiver Revision Division will look at your J-1 status records and send you a formula determination approximately four to six weeks after submitting your request.
You can also review whether or not you fall under any of the following cases that typically come with home residency requirements:
If you have a home residency requirement but would prefer to stay in the United States during your green card application, you can apply for a waiver. The waiver will permit you to apply for a green card from within the United States, also known as the “adjustment of status” process.
You should be eligible for a waiver if any of the following apply to you:
If you’re eligible, you can begin the waiver application process. You can follow this procedure to apply for a waiver:
If the State Department approves your waiver request, you won’t need to return home and fulfill the home residency requirement. Instead, you can now begin thinking about the green card application process. If you do not have a home residency requirement, you can start to consider the marriage green card process. You should first check to see whether the “90-day rule” applies to you in both cases.
The “90-day rule” says that you should not apply for a green card within your first 90 days after entering the United States. If you do, the U.S. government will assume that you “wilfully misrepresented” yourself or that you never intended on honoring your J-1 visa’s home residency requirement. If you break the 90-day rule, it can be challenging to gain green card approval. U.S. Citizenship and Immigration Services (USCIS), a Department of Homeland Security (DHS) agency, may even revoke your current visa if you break the 90-day rule. So, you should be sure to follow the rule by calculating the 90th day since your most recent entrance into the United States.
To figure out when the 90th day since your entrance into the United States will be, you can check your Form I-94 or official “Arrival/Departure Record.” The 90-day rule only applies to your latest entry into the United States. So, if you first came to the United States with a B-2 visitor visa or tourist visa and eventually returned to the United States with a J-1 visa, your 90-day rule applies to the date when you entered with your J-1 status. But, if you first came to the United States with a B-2 visitor visa and switched to J-1 visa status before your B-2 visa expired, your 90-day rule applies to the date you entered with your B-2 visa.
As a marriage green card applicant, you can also show “willful misrepresentation” by marrying too soon after arriving in the United States. You should wait to get married until after your 90-day rule period ends. If you marry too soon, immigration officials may assume that you never intended to return to your home country or that you always planned to marry your spouse and obtain a green card.
There are two application paths for J-1 status spouses of U.S citizens. You can either apply for your marriage-based green card from within the United States through a process called “adjustment of status” or apply from your home country through your local U.S. embassy or consulate through “consular processing.” If you have waived, do not have, or have already completed the home residency requirement, you can apply for a marriage green card from within the United States.
As a J-1 visa holder married to a U.S. citizen, your green card application process will look the same as most other U.S.-based spouses married to U.S. citizens.
You’ll first need to file the following forms together with your spouse:
If U.S. Citizenship and Immigration Services (USCIS) determines that you married your U.S. citizen spouse “in good faith,” you should receive your green card between 10-13 months after USCIS receives your application. Marrying “in good faith” means that you did not just marry your spouse to obtain a green card. Remember to follow the 90-day rule before applying for your marriage-based green card. Note that the 90-day rule only applies to Form I-485. You may file Form I-130 at any time, even during your first 90 days in the United States, and you will not break the rule. But, it’s unusual and often inefficient to file these two forms separately.
If you break the 90-day rule, you might still be able to prove that you did not “willfully misrepresent” your immigration status intentions. For example, you may be able to provide USCIS officials with evidence of your ties to your home country to prove that you did initially intend to return. Such evidence might include documentation of a job offer or internship acceptance in your home country. You can also provide USCIS with proof from your J-1 visa’s designated sponsor or sponsoring organization stating your exchange program’s start and end dates to prove that you meant to honor the terms of your J-1 visa, but that your plans simply changed.
Be aware that while your Form I-485 is pending, you won’t be able to do summer work travel and other travel outside of the United States unless you obtain a travel permit or “Advance Parole Document.” If you travel outside of the United States without authorization, USCIS will stop considering your green card application, and you’ll need to re-start the process.
You should also be careful not to look for employment in the United States unless you have a work permit or “Employment Authorization Document” (EAD). If you have your work permit, you may work in the United States as you wait to receive your green card, even if your J-1 visa has already expired. But, if your visa expires before USCIS approves your work permit, you won’t be able to continue working as you wait to receive your work permit and green card.
Your marriage green card process will look slightly different if you’re married to a U.S. green cardholder. Your spouse will have to file Form I-130 or the “Petition for Alien Relative” family sponsorship form. After U.S. Citizenship and Immigration Services (USCIS) approves your Form I-130, you’ll need to wait to receive a visa number. For more information on completing Form I-130, check out our filing guide.
Once you receive a visa number, you’ll be able to begin the marriage green card process. While visa numbers are immediately available for applicants with U.S. citizen spouses, applicants with U.S. green card holder spouses must wait.
Your green card application process will depend on whether or not your visa number becomes available before or after the expiration of your J-1 visa. If your visa number becomes available before your J-1 visa expires, you can apply for the green card from the United States. Applying for a green card from within the United States is called the “adjustment of status” process. But, if your visa number becomes available after your J-1 visa expires, you will have to apply for the green card from your home country. Suppose your J-1 visa expires before you receive your visa number, you can try to get an extension on your J-1 visa or a B-2 visitor visa. If USCIS approves your extended or new visa application, you can remain in the United States and undergo the green card application process through the U.S.-based adjustment of status process.
If you can apply from within the United States, your next step will be to file Form I-485, or the “Application to Register Permanent Residence or Adjust Status.” If approved, you can expect to receive your green card in the mail approximately 29-38 months after USCIS receives your Form I-130.
If you must apply from within your home country, you will need to apply for your marriage green card through your home country’s U.S. embassy or consulate. You’ll have to complete the online Form DS-260 or the “Immigrant Visa Electronic Application.” The marriage green card consular process also involves a visa interview with a consular officer. If approved, you can expect to receive your green card in the mail approximately 27-46 months after USCIS receives your Form I-130.
Be sure to keep the 90-day rule in mind during your application process. You must wait at least 90 days after your most recent entrance into the United States before applying for a green card with Form I-485.
As the spouse of a U.S. green cardholder, you are more likely than spouses of U.S. citizens to experience a long period of being unable to work. Since you must wait to receive a visa number, you may have to wait an additional 19-25 months between filing Form I-130 and Form I-485. You can only apply for a work permit after you have submitted Form I-485. USCIS may take up to five or more months to process your work permit application. To avoid a significant gap in your employment, you should seek a new work permit. If your J-1 visa expires before you can obtain a new work permit, you may either try to extend your J-1 visa or acquire a different work visa, like an H-1B visa.
Suppose you want to take a short international trip after you’ve already filed Form I-130. If you travel abroad, you may have difficulty re-entering the United States. Suppose an immigration officer at a U.S. entry point finds out that you have a U.S. citizen or green card holder spouse during the screening process. They may conclude that you have “willfully misrepresented” your intent to honor your temporary J-1 visa terms. Immigration officers may deny you re-entry to the United States and possibly revoke your J-1 visa status. You would then have to return to your home country. You could pursue the marriage green card process from within your home country. Still, you would have to first prove to the U.S. government that you did not willfully misrepresent yourself or attempt to deceive the immigration officers you met at the U.S. port of entry.
Sometimes J-1 visa holders intentionally or unintentionally “overstay” their visa or remain in the United States after the expiration of their visa. If caught overstaying your J-1 visa, the U.S. government may ban you from returning to the United States for several years. The length of your ban will depend on how long you remain in the United States without a valid visa.
If you overstay your visa, be sure to leave the United States within six months of your visa’s expiration date. If you overstay your visa for more than six months, U.S. Citizenship and Immigration Services (USCIS) will bar you from re-entering the United States for three years. Overstaying for over a year will lead to USCIS barring you from re-entering the United States for the next ten years.
If you have overstayed your visa, but your U.S. green card holder spouse gains U.S. citizenship while you’re still in the United States, USCIS will waive the time you overstayed. You may remain in the United States as you undergo the marriage green card process.
Applying for a marriage green card can be complicated, but working with a good immigration attorney can make it easier. If you can't afford the attorney fees and don't want to handle your green card case alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click "Get Started" to see how we can help make your American dream come true!