Can J-1 visa holder marrying U.S. citizen avoid two-year home stay by getting O-1 visa first?

When a J-1 visa holder is really subject to the two-year-home-stay requirement, switching to an O-1 or other visa will not get around it -- it only puts off the inevitable.

Question

I’m in the U.S. on a J-1 visa, and I’m subject to the requirement that I return to my home country for two years before I can apply for permanent residence in the United States. I’m planning to get married to my U.S. citizen husband, and I am wondering -- if I switch to O-1 status, can I then adjust my status to permanent resident, since I will not be in J-1 status anymore? Or will I still be subject to the two-year home-stay requirement?

Answer

Switching to a different visa, like O-1, isn’t going to make the two-year home-stay requirement associated with your J-1 status go away, even if you get married to a U.S. citizen.

So, what can you do if you don’t want to go home for two years? First, make sure that you really are subject to the two-year home-stay requirement. Someone may have written on your certificate of eligibility for the J-1 (the DS-2019) or your visa that you’re subject to the two-year home-stay requirement, but that is not a binding determination, and it may not be accurate. Consult with an immigration lawyer if you have any doubt about whether you really must go home for two years.

Second, if you really are subject to the two-year home-stay requirement, determine whether you’re eligible for a waiver of the requirement, and apply for it before adjusting status.

There are five different ways to get a waiver: getting your home country government to say it doesn’t object to you staying in the U.S.; having a U.S. government agency request that you stay to work for it; proving that you would be persecuted if you went back home; showing that you’ve got a U.S. citizen or permanent resident spouse or child who would suffer extreme hardship if you had to go home for two years; or, if you’re a physician, having a state department of health request that you work for at least three years in an area where there’s a shortage of doctors. (See “Waivers of Two-Year Home Residency Requirements for J-1 Visa Holders.”)

If you can’t get a waiver, you can’t adjust your status to permanent resident, get an immigrant visa, get any kind of H visa, or get any kind of L visa until you’ve spent two years in your home country. Getting an O-1 visa without going home is allowed, but it will just postpone the inevitable.

If you want to proceed with the marriage, your husband can start the process for you to get an immigrant visa by filing an I-130 petition for you after you two get married, even while you’re still in the United States. However, you won’t be able to take the next step — obtaining your immigrant visa to move back to the U.S. — until you’ve spent two years in your home country. But at least you’ll have the I-130 approval process taken care of by the time the two years are up, and that will cut down on the time you have to spend apart (or together outside the United States).

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