The J-1 Visa, also know as the Exchange Visitor visa, is in the non-immigrant category according to the USCIS. The visa is approved for individuals to participate and work in study based exchange programs in the United States. In most cases, J-1 visas are valid for two years.
Why is it Difficult to file an I-485 application under J-1 Status?
Technically, J-1 visa holders are not allowed to apply for a green card in the United States because of the stipulations of the J-1 visa application. For example, because it is a cultural exchange visa, the applicant must also affirm in their visa application that they plan on returning to their home country once the visa expires. That way, the exchange favors both nations, as the skills the individual learns in America will be brought back to their country of origin.
Additionally, the J-1 is a non-immigrant visa, and although not the same as an H1-B, both visa types are not “dual intent”, meaning that you cannot apply for permanent residence when you have already pledged to return to your country upon its approval.
Applying for a Waiver
The INA specifically states under Section 212(e) that there is a foreign residence requirement (you must return to your country for 2 years before applying for a green card) for J-1 holders if:
- The U.S. government has designated your home country as having few people with the skill set and experience in your particular occupation or field
- You have been medically trained in the U.S. as a resident
- The program the J-1 holder participated in was financed by their home government
If you meet such conditions, you can apply for the USCIS Form I-612, Application for Waiver of the Foreign Residence Requirement. If your waiver is granted, you will be able to then have an immigrant petition filed on your behalf and start the I-485 application process.
Conditionality for Filing the I-612
Not everyone will be able to apply for the waiver. Applicants need to be able to prove one of the following in their application:
- That they can demonstrate to the U.S. government that returning to their home country will incur significant financial hardship
- That they can demonstrate to the U.S. government that returning to their home country could put them at risk of persecution because of political beliefs
- They have provided a “No Objection” letter from their home country which specifies that their country of origin does not object to them staying in the U.S.
The filing fee for Form I-612 is 930 USD.
