Can J-1 visa holder marrying U.S. citizen avoid two-year home-stay by living in another country?

Spending two years in a country other than the J-1 visitor's home country will not help work off the two-year home stay requirement.

Question

I’m in Detroit on a J-1 visa, and on my visa it says “Bearer is subject to Section 212(e). Two year rule does apply.” I’m planning to get married to my U.S. citizen wife, but she doesn’t want to move back to my home country, Egypt, with me. Since I must leave the U.S. for two years and we’re so close to Canada, I’m wondering if we can spend the two years in Canada. Does that fulfill my J-1 two-year requirement, or do I have to go back to Egypt?

Answer

Spending two years in Canada, or any country other than your home country Egypt, isn’t going to make your two-year home-stay requirement go away, even if you get married to a U.S. citizen.

So, what can you do if you don’t want to go back to Egypt 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 are subject to the two-year home-residence requirement, but that is not considered a legally binding determination, and the person may actually have gotten it wrong. Consult with an immigration lawyer if you have any doubt about whether you really must go home for two years before applying for lawful permanent residence (a green card).

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

U.S. immigration law provides five different bases upon which to get a waiver of this requirement: 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 have 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 are 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 Nolo's article, “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 — in your case, Egypt — and nowhere else. You could apply for Canadian residency, but it would just delay your return to the U.S. if that’s your goal.

If you want to proceed with the marriage, your wife 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 have spent two years in Egypt. 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 amount of time you have to spend apart.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
FEATURED LISTINGS FROM NOLO
Swipe to view more
NEED IMMIGRATION HELP ?

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you