Frequently Asked Question: Can a J-1 Visa Holder Obtain a Green Card?
    


J-1 Green Card Procedure and Considerations

We often encounter individuals wondering whether it is possible for someone to pursue permanent residence from J-1 status.  The short answer is yes, it is possible; however, like most situations in immigration law – It’s complicated.  The path itself is not so complicated, but rather all of the considerations that must be taken into account can be overwhelming for some and are critical to understand.  Therefore, we would like to point out some of the most important considerations you should discuss with your immigration attorney.

1) Two-Year Home Residency Requirement - INA Sec. 212(e):

As mentioned in our Visa Library, some J-1 visas are subject to a two-year home residency requirement.  This means that the individual must return to their required country of foreign residence for an aggregate of two years before they are eligible to obtain permanent residence in the United States.  There are certain situations where a waiver may be obtained, which can be seen in more detail in our Visa Library.

How to know if you are subject to 212(e) : Indication of whether one is subject to 212(e) or not is supposed to be found on the DS-2019 and visa stamp.  The DS-2019 should indicate the reason the individual is subject, which determines the option(s) for a waiver.  However, we have found that DS-2019 forms and visa stamps are often unmarked or marked incorrectly.  If you are unsure of whether or not you are subject to 212(e), you could consider obtaining a no-fee advisory opinion from the Department of State ( here).

Being subject to 212(e) will not prevent you from filing and I-140 or obtaining I-140 approval, but it will factor into whether or not you are eligible to file an I-485 (adjustment of status within the U.S.) or undergo Immigrant Visa Processing (outside the U.S.) within a certain amount of time.

2) Immigrant Intent on a J-1 Visa:

One of the most important aspects of the J-1 visa status is that it requires non-immigrant intent.  This means that when you start the J-1 program, enter the United States on your J-1 visa, or apply for a change of status to J-1, you should not have intentions to abandon the program or use the program as a stepping-stone for permanent residence.  This does not mean that you cannot change your mind while you are in J-1 status and want to become a permanent resident, but it does mean that you need to be cognizant of the terms of the visa status you are agreeing to.  We have had many clients obtain permanent residence from J-1 status but only after careful discussion of their specific situation and circumstances.

3) Timing Considerations:

Always be aware of current USCIS processing times for the I-140, but note that an I-140 filing or approval does not grant status or lawful presence in and of itself.  Therefore, if you intend to file an I-485 from J-1 status and wish to wait for I-140 approval to do so, you should be aware of the possible timeline.

For those eligible to file an I-485, you should keep in mind the processing times for the I-765 and I-131. When filing an I-485 based on an I-140, you can also apply for an EAD to work and Advance Parole to travel. If you need these documents to work or travel, keep in mind how long they may take to be processed and plan accordingly.

4) Effect of J-1 Status on I-140 Adjudication:

There should be no effect on the I-140 approval chances due to holding J-1 status.  I-140 petitions take into account credentials and your visa status should have no bearing on whether the I-140 is approved.  As mentioned previously, the J-1 status can affect the I-485.

    
The issues outlined above are the among the most commonly encountered J-1 issues we see when it comes to applying for a green card. Of course, they are not the only considerations that must be taken into account.