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May 25, 2009: J-1 Visa Might Be Obstacle To Residency

J-1 Visa Might Be Obstacle To Residency

Hello! I entered the United States legally 6 years ago on J-1 visa, which I overstayed. Since then I was working illegally (using my SSN without work authorization). A few months ago I got married to U.S. citizen. When filing form I-130 and G-325A I stated what I didn’t work for the past few years but I did. So now, after I got receipt for my I-130, I am having second thoughts about putting the wrong information there. Is there any way to correct it (send follow up papers?)? Do you think I should do it? I don’t want to mess up my case and I also don’t want to bring trouble to my employer (it’s a family owned business). I’m really nervous about this. Thank you for your help.
— Anonymous

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 were eligible to file for adjustment of status.

Among other information, the Form G-325A, Biographic Information, requests your employment history for the last five years. It is very important that you provide all of your employment information during that period, regardless of the fact that you were not authorized to work. Practically speaking, you will generally be forgiven for your unauthorized work because of your pending adjustment of status application and your eligibility for the immigration benefit. Plus, because your adjustment of status application is a matter of discretion, if the Service finds out that you are not being honest about your unauthorized work, it may think that you are not being honest about other information on your applications, about your relationship with your spouse, or with the bona fide marriage documents you are presenting.

It would be extremely naïve for anyone to think that the Service will not find out about employment because it has access to nearly everything (credit reports, driving records, etc.). You will have an opportunity to amend your application/form at the interview. As for the employer, the goal of the Field Officer who conducts the marriage interview at your local office is to determine why you married your husband. It is not catching your employer with hiring an unauthorized worker. If you have additional questions about the J-1 visa or your pending adjustment of status application, it would be wise for you to contact an experienced immigration attorney to discuss your concerns.

Michael Shane and Evan Shane, Immigration Attorneys

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