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December 15, 2008: J-1 Visa Holder to Wed a U.S. Citizen

J-1 Visa Holder to Wed a U.S. Citizen

I am an American citizen and I want to marry a Romanian citizen. We are living together, but we want to make it official. She has a J1 visa and also her son (14 years old, also Romanian citizen), has J2 visa, as dependent.

Questions: 1. What do I /we have to do? 2. If we get married, is there any chance that her sponsor will find about it? 3. When can we apply for her American citizenship and green card? 4. What we can do for her son to have the same rights? 5. Can he get the citizenship, too?
— Ed

Generally, the first step is to get married, assuming you are doing so because you love each other and not for the primary purpose of obtaining immigration benefits. A major hurdle may be your wife’s J-1 nonimmigrant status. She will need to look closely at her visa status to see if she is subject to the two year foreign residency requirement. If she is subject, unless she is granted a waiver of the requirement, she will be required to return to Romania (or her country of last residence) and physically reside there for two years upon the completion of her J-1 training in the United States.

She will not be able to adjust her status or apply for an immigrant visa until she has resided abroad for the required two years. If she is not subject to the foreign residency requirement and assuming she and her son are otherwise eligible, you may file two separate Form I-130 petitions. You will file one for your wife to classify her as your spouse and the other will be for your stepchild who will be considered your “child” for immigration purposes. Both will be considered your “immediate relative” and will be apply for their respective green cards immediately.

He will be your stepchild because the marriage to his mother will occur prior to his 18th birthday and you will file the petition prior to his 21st birthday. They will have to file their own Form I-485, Application to Register for Lawful Permanent Resident status and Form I-765, Application for Employment Authorization, along with all of the required supporting documentation. You will be responsible for filing Form I-864, Affidavit of Support, and providing your financial information.

Assuming all of the forms are properly filled out and accompanied by the required supporting documentation, both your wife and stepchild will receive a green card. This is just the first step. There are subsequent steps such as filing Form I-751, Petition to Remove Conditions from Residence if the marriage was less than two years old when the green card was granted, and Form N-400, Application for Naturalization, but the main focus right now should be obtaining the green card.

If you have questions regarding whether your wife is subject to the two year foreign residency requirement and/or filing for permanent residency, it would be wise to contact an experienced immigration attorney to advise you of the law and how to proceed.

Michael Shane and Evan Shane, Immigration Attorneys

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