Adjustment of status options from J-1 to a green card. Learn everything from J-1 visa waiver, H-1B, and the green card process.
The United States is the land of opportunities and welcomes foreign scientists, professors, and researchers to enrich their respective technological and scientific communities by bringing innovative ideas that can solve the current world’s pressing problems.
In order to be admitted into the country on a nonimmigrant visa status, they must be sponsored by a U.S. employer. The benefits these employers offer go way beyond what they can do for their employers, but they have contributed significantly to the national interest of the United States.
Nonetheless, we are talking about highly-qualified temporary workers who entered the U.S. under a J-1 visa (Exchange Visitor Visa). The challenge for these scholars, scientists, professors, and other specialty occupation professionals and their sponsors is to find a proper way to keep these professionals in the U.S.
The J-1 visa does not offer a straight path to a green card. Considering that a J-1 visa is not deemed a “dual intent” type of visa, to be granted a J-1 visa, the applicant must demonstrate ties to the home country (e.g., family or assets) and that they fully intend to return as soon as the J-1 visa has ended. Besides J-1 visas, B-1, F-1, and TN visas are also not considered dual intent visas.
Although J-1 visa holders are generally not eligible for a green card, that does not mean that transition from a J-1 visa status to a green card is impossible. Because it is, and it can be done without violating immigration law or anyone’s status. The thing is, there are some hurdles that visa holders must overcome. This is a complex process and should be handled by a team of experts to ensure a positive result and your stay in the U.S.
Understanding the J-1 Visa (Exchange Visitor Visa)
The J-1 visa is a type of visa that, unlike other nonimmigrant visas, comprehends a wide range, yet, a specific group of individuals who are then allowed to come to the United States to participate in a detailed work and study-based exchange program in their particular field of expertise.
The U.S. Department of State (DOS) is the national agency responsible for the Exchange Visitor Program. Its main goal is to promote the exchange of ideas, enhance research in science, technology, engineering, and mathematics, and strengthen connections between scholarly institutions in the U.S. and foreigners.
Categories of professionals included in the Exchange Visitor Program (J-1) include but are not limited to:
- College and University students
- Trainee: the opportunity for foreign professionals to receive business training in their field of expertise in the U.S.
Overcoming the barriers between J-1 and the green card status
It is possible to go from a nonimmigrant visa with dual intent to becoming a permanent resident, but as mentioned before, there are barriers that we need to move to get the final goal, such as
- J-1 is not a “dual intent” visa
- Some J-1 visa holders are required to return to their home country for 2 years before they are eligible to apply for a green card – rule under Section 212 (e) of the Immigration and Nationality Act (INA).
- Individuals whose exchange program was financed by their home country’s government or the U.S. government;
- Professionals which the U.S. government considers to be in need in your home country;
- You have received medical training in the U.S. as a resident or intern.
Usually, J-1 visa applicants are told at the beginning of their nonimmigrant visa process whether or not they are subject to the two-year foreign residence requirement. This information is also listed in Form DS-2019 (Certificate for Eligibility for Exchange Visitor (J-1) Status).
Moving away from ” single intent”
Walking toward the green card application, the first step will demonstrate that the desire to switch to a permanent resident status originated from an unexpected change in the individual’s personal life.
The J-1 Waiver
To overcome the two-year home requirement to stay in the home country after the Exchange Visitor Program is completed, the applicant can resort to the J-1 visa waiver (Form DS-3035 and I-612, Application for Waiver of the Foreign Residence Requirement (under Section 212 (e) of the Immigration and Nationality Act). A J-1 waiver is mainly used by people who desire to go from a J-1 visa to a green card.
The USCIS establishes 5 statutory bases in which a J-1 waiver can be granted:
- No objection statement is issued by the government of your home country, not objecting to you not returning to your home country for 2 years at the end of your Exchange Visitor Program and possibly becoming a legal permanent resident. This option does not apply to medical professionals on a J-1 visa.
- Sponsored by a U.S. Federal Agency, the government agency may request that you stay in the country, and they may file for an Interested Government Agency Waiver on your behalf.
- Fear of persecution based on your religion, race, or political views upon your return to your home country.
- Exceptional hardship to a U.S. citizen or green card holder, you must demonstrate that leaving the U.S. will cause severe suffering or deprivation to the U.S. citizen or permanent resident. A mere separation from a family member is not enough to establish “hardship.”
- Sponsored by the State Public Health Department or equivalent, and for this, you must meet the following criteria:
- Have a full-time job offer at a healthcare facility in designated professional shortage areas,
- Agree to work at that facility within 90-days of receiving a waiver, and
- Work for that facility (40 hours per week) for at least 3 years.
An approved waiver by the USCIS means that the foreign national applicant is allowed to stay in the United States and initiate an adjustment of status process.
Options to change from J-1 visa to green card status
The most popular alternative to adjust immigration status from J-1 to legal permanent residents is applying for an O-1 or H-1B visa.
J-1 to H-1B visa category
H1-B is an employment-based visa that the USCIS grants foreign workers who come to the United States to work for a U.S. company. In other words, it is a type of visa requiring a job offer and an American company to sponsor the visa application.
H-1B Eligibility requirements
- Job offer from a U.S. company
- Proof of bachelor’s or a higher degree in the field of expertise
- Employers must prove a lack of U.S.-qualified workers to perform that job
Steps to file for H-1B visa petition
- Find a company willing to be a sponsor
- Employer must go through the labor certification process to obtain Labor Condition Approval (LCA) from the Department of Labor (DOL)
- File a nonimmigrant petition (Form I-129 – Petition for Nonimmigrant Worker)
- This application requires the submission of supporting documents and a fee payment.
J-1 to O-1 (Individual with Extraordinary Ability or Achievement)
O-1 is an employment-based nonimmigrant visa that allows adjusting status to a lawful permanent resident. This type of visa is granted to individuals who demonstrate sustained national or international acclaim, possess extraordinary ability in science, education, business, arts, or athletics, and have risen to the top of their field of expertise.
Demonstrating Extraordinary Ability
The USCIS established 8 element criteria in which applicants can submit evidence to demonstrate extraordinary ability in their professional field. To qualify, the applicant must fulfill 3 out of the 8 criteria.
- Evidence of membership at a distinguished organization
- Evidence of national or international recognition (award or prize)
- Evidence of original contribution to the area of expertise
- Evidence of employment at a reputable organization
- Evidence of published articles about the applicants and their work
- Evidence of judging the work of others in the same field of expertise
- Evidence of high-salary
- Evidence of authorship
Processing time to transition from J-1 to Green Card
Since we are talking about a very complex green card process, there are no straight answers to a timing question.
Many factors need to be taken into consideration, including the following:
- Time to get a J-1 waiver approved – will vary depending on which bases you are requesting.
- The time to get a dual intent visa will vary depending on your visa type. On a positive note, H-1B and O-1 employment-based green cards are now eligible for premium processing, which guarantees the adjudication of the process within 15 business days.
- Time to adjust status – it may be according to the volume of applications and the service center in which it is filed. Processing times can be checked on the USCIS website.
The transition from J-1 Exchange Visitor Visa status to Permanent Resident of the United States can be overwhelming, tiring, and time-consuming, but it is definitely worth it in the end.
Now you have a better understanding of the green card process options. You can contact us, we will assess your qualifications and expectations and guide you toward the best option for your immigration situation.
What is a J-1 -Exchange Visitor Visa?The J-1 visa is a type of visa that, unlike other nonimmigrant visas, comprehends a wide range, yet, a specific group of individuals who are then allowed to come to the United States to participate in a particular work study-based exchange program in their specific field of expertise.
Is it possible for a J-1 visa holder to obtain permanent residence (Green Card)?It is possible, but there are barriers we need to overcome to get the final goal, such as proving there was no dual intent at first and that the decision on your application to adjust your status originated unexpectedly due to changes in personal circumstances. Also, you will need to proceed with the 2-year requirement waiver application (if applicable) – Form DS-3035 and I-612.
What is the two-year home rule under Section 212(e)?Some J-1 visa holders are subject to the 2-year home rule requirement, which means they must return to their home country for 2 years after the Exchange Visitor Program, which is the two-year rule under Section 212(e).
What is a J-1 waiver?The J-1 visa waiver (Form I-612, Application for Waiver of the Foreign Residence Requirement (under Section 212 (e) of the Immigration and Nationality Act. I. It is mainly used by J-1 visa holders currently in the U.S. to change from a nonimmigrant status to permanent residents without having to leave the country for 2 years as established under Section 212 (e).
How to file for a J-1 visa waiver?You must file Form DS-3035 online, pay a fee, and submit Form I-612 with supporting documents.
How much does it cost to file for a J-1 waiver?$930.
What are the options for a J-1 visa holder to stay in the U.S. after the Exchange Visitor Program is complete?The most popular option to adjust immigration status from J-1 to legal permanent residents is applying for an O-1 or H-1B visa. A Green Card through marriage is also an option. If a J-1 visa holder marries a U.S. citizen or lawful permanent resident, such a spouse can sponsor the visa holder to become a permanent resident. Note that you will need to file for a J-1 waiver to be granted authorization to stay in the U.S. while you file to adjust your status.