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July 12, 2010: Can J-1 Visa Holder Adjust Status Based on Marriage to a United States citizen?

Can J-1 Visa Holder Adjust Status Based on Marriage to a USC?

Hello, I was born in Russia and came to the United States a year ago on a J1 visa. I overstayed the visa almost 8 months, and I want to apply for an adjustment of status to permanent resident.

Can you tell me about any possible options? Even if I get married to a U.S. citizen, can it be a problem to get a green card since I overstayed? Can I get a green card without returning to Russia? What are other possible options for me to get a green card besides marriage?
— Anonymous

Your first challenge to adjusting your status to permanent resident may be the fact that you entered the United States with a J-1 visa. Generally, some J-1 nonimmigrant visas require that the exchange visitor return to their foreign country of residence for two years at the conclusion of the program. This is called the 2 year foreign residency requirement.

The J-1 nonimmigrant visa and corresponding nonimmigrant visa paperwork should clearly state something like “is subject to 2 year foreign residency requirement pursuant to INA section 212(e)”. If so, the J-1 exchange visitor is ineligible to adjust his/her status in the United States without first either completing the foreign residency requirement or obtaining a waiver of the requirement.

In other instances, the J-1 nonimmigrant visa states “not subject to 2 year … etc.” and the J-1 exchange visitor will be eligible to adjust status in the United States. Assuming you are not subject to the foreign residency requirement or you obtained a waiver of the requirement, you are eligible to file for adjustment of status.

Getting married to a United States citizen does not automatically guarantee that you will get a green card. You must first prove to the United States Citizenship and Immigration Service (USCIS) that the reason why you married your spouse was out of love and not for the primary purpose of getting around the immigration laws. Once the marriage is found to be ‘bona fide’, then you will have to prove that you are otherwise eligible for the green card. The foreign residency requirement may not be the only factor in determining your eligibility for the green card.

Without having more specific information about you and your immigration situation, I cannot recommend other possible options for obtaining a green card. Before you file any paperwork, it would be wise to consult with an experienced immigration attorney to discuss all of your options with you.

Michael Shane and Evan Shane, Immigration Attorneys

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