Marrying a Green Card Holder After a J-1 Visa Overstay

If you are a J-1 visa holder planning to marry a U.S. green card holder (lawful permanent resident), you yourself might eventually be eligible for a family-based U.S. green card. However, it's quite likely you will need to spend at least a few years outside the United States first, particularly if your permitted J-1 stay has already run out, for the following three reasons:

• Spouses of U.S. permanent residents cannot get a U.S. green card until a visa number becomes available to them; which, because of annual limits on the numbers of visas given out in this category, often involves a wait of two to five years until one's "priority date" is current.
• Many J-1 visas come with a two-year home country or home residence requirement, meaning that before you can apply for a U.S. green card or other visa (even assuming one was immediately available to you) you would need to spend two years in your home country, sharing the skills and knowledge that you acquired in the United States.
• Your visa overstay might further complicate the matter, resulting in a time-bar upon your reentry to the U.S. of either three or ten years.

Fortunately, you don't have to add up all the potential time delays described above into one grand total, but can wait them out simultaneously, as we'll explain in this article.

Spouses of U.S. Lawful Permanent Residents Can Face Long Waits for Visas

As the spouse of a U.S. green card holder, you are eligible for a green card, but not until a visa number becomes available. As mentioned, a waiting list sometimes develops. How long people must spend waiting to move forward varies depending on demand, typically ranging from between zero and five years.

If there is a wait, it's based on your "priority date." That's the date your green-card-holding spouse initially filed the required initial visa petition with U.S. Citizenship and Immigration Services (USCIS) on Form I-130.

The only thing you can do to speed up the wait, if there is one, is if the U.S. spouse successfully applies for naturalization and becomes a U.S. citizen. (See When Can I Apply for U.S. Citizenship?.) In that case, you would become an "immediate relative," and could apply for your green card without further delay.

For more information, see Applying for a Green Card Based on Marriage to a U.S. Lawful Permanent Resident.

Two-Year Home Country Requirement and J-1 Visa

The J-1 visa was created in order to foster international exchanges of knowledge. For that reason, you might be expected to return home and share that knowledge once your permitted stay under a J-1 visa expires; particularly if your home country helped fund your U.S. stay. There's a good chance that your J-1 visa came with an automatic requirement that you return home, and stay there, for two years following your U.S. stay before attempting to return to the United States.

Although waivers (grants of official legal forgiveness) are available, you could only make use of one if you had an immediate right to return to the United States, such as a marriage to a U.S. citizen rather than a green card holder.

General Penalties for Visa Overstay

Due to many legal consequences, it is never advisable to remain in the United States beyond the permitted time under a visa. Once your permitted stay expires (usually shown on a Form I-94), your visa is automatically cancelled and you are in the U.S. unlawfully. Many people who overstay feel like they are getting away with something when no one from any U.S. immigration department shows up to deport them, not realizing that the consequences usually come later.

For example, if you stay beyond your expected departure date by six months, and then leave the U.S. (as you'll most likely have to do), you will not be allowed to return to the U.S. for three years, despite your marriage. If your overstay lasts a year or more, you will not be allowed to return for ten years.

Hiring an Immigration Attorney

Immigration law is always complicated, and it is wise to hire an experienced attorney for situations such as this one. The attorney will work to analyze the best strategy for you and your spouse, and help you to complete all the required paperwork.