Under U.S. law, J-1 visa holders trying to obtain work or family-related visas in the H, L or K categories, or attempting to adjust their status as permanent residents, must return to their home country for 2 years before their status can be changed.
According to the USCIS, the J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
So for example, if you are graduate student at an American University, and you start a relationship with an U.S. citizen or permanent resident while holding a J-1 visa, you may not be able to immediately apply for a fiancee visa or to adjust your status if you get married in the U.S. You may have to go back to your country for 2 years, unless the 2-year requirement is waived.
The 2-year rule, as it is known, can only be waived if the J-1 visa holder applies for a J Visa Waiver before the USCIS, pays the filing fee, and claims one of the 5 applicable bases, which are highlighted below:
- Non-objection Letter: The government of the home country has issued a non-objection letter through its Embassy or Consulate – please note that there are special rules for physicians and those receiving medical education or training. Many Consulates, such as the Consulate General of Brazil in Washington, have procedures in place to provide you with a non-objection letter;
- Request by an Interested U.S. Federal Government Agency: An Interested U.S. Federal Government Agency requests the waiver on behalf of the J-1 visa holder;
- Persecution: The J-1 visa holder believes that he/she will be persecuted based on race, religion, or political opinion if he/she returns to his/her home country;
- Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor: please note that mere separation from family is not considered to be sufficient to establish exceptional hardship; or
- Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program): special waiver for foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education in the U.S.
If you fall within one of these categories, you may be able to apply for a J Visa Waiver, which will allow you to change your J-1 visa or adjust your status as a permanent resident. Although hiring an attorney is not mandatory, it is highly recommended. Kessia Cericola would be happy to represent you and assist you through the process. If you are interested in learning more, please contact us for a free consultation.