Will application for waiver of the two-year foreign residence requirement hurt my J-1 visa status?

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Question:

I’m in the U.S. as an exchange scholar on a J-1 visa, but have recently married a U.S. citizen. I’m subject to the two-year foreign residency rule and would like to apply for a waiver so I can remain in the U.S. and apply for a green card. Will my waiver application affect my current J-1 status?

Answer:

You are right to be concerned, because maintaining valid J-1 status is not only what you are expected to do under U.S. immigration law, but could be crucial to your ability to qualify for a green card. An approved 212(e) waiver application can ”freeze” your J-1 status – in other words, you will be permanently stuck with the J-1 program dates that you have. So, unless you’re careful, your J-1 status could end before you are able to get your green card approved. If this happens, then you will be in status “limbo.” If your green card is denied for some reason, you will be left without a status and forced to immediately leave the U.S. or remain illegally.

During the first few steps of the waiver process, you’re safe -- your J-1 status will not be affected. However, once the DOS Waiver Review Division issues a favorable waiver recommendation in your case, you are no longer considered to be a true J-1 program participant. That will impact your ability to extend your status or transfer between program sponsors, both of which are normally possible for J-1 visitors.

You will not be allowed to extend your current J-1 status beyond the end date on your DS-2019. (This comes from the State Department's Foreign Affairs Manual, at 9 FAM 41.62 N10.2) If DOS instead denies the request for a waiver recommendation, you may, if you wish, apply for an extension of your J-1 status. (See 9 FAM 41.62 N10.2.)

As for transfers, the Foreign Affairs Manual does not specifically prohibit a J-1 visitor from transferring between one program sponsor and another after receiving the DOS's waiver recommendation. If, however, the planned transfer would lead to an extension of the J-1 program end date, the transfer will not be allowed. Also, once your waiver is approved by DOS, you will no longer be able to get a J-1 visa from a foreign U.S. embassy for travel back and forth as a J-1. (If you don’t wish to travel, then you will be fine as long as you have your J-1 program end date extended.)

Given this information, it is important to carefully time your waiver application. Before applying for the 212(e) waiver, you should have your J-1 program dates extended as far into the future as possible, in case your waiver application is approved, resulting in your being unable to qualify for future extensions.

Also, if feasible, it is good to get a J-1 visa in your passport from a U.S. consulate in your home country to match those extended dates. Without a valid visa, you will be unable to continue traveling and returning to the U.S. as a J-1. You would have to wait until you receive both the waiver and your new status approval before traveling again. As long as you are in possession of a DS-2019 and a J-1 visa, you will be allowed to return to the U.S. as many times as you want, even after receiving a favorable waiver recommendation from DOS.

For more on this type of visa, see Nolo's articles on "Student and Exchange Visitor Visas."

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