Q: Does the 2YHRR Apply When Applying for Form I-130 and Adjustment of Status After Marrying a US citizen?
Hello,
I arrived in the US in September 2021 on a J-1 visa, which carries a two-year home residency requirement. During my stay, I was offered a Ph.D. position, which I accepted. In June 2022, within the grace period of my J-1 visa, I returned home and applied for an F-1 visa. Upon obtaining it, I reentered the US in August 2022.
I am now marrying a US citizen come spring. Considering this change in circumstances, I'm seeking clarification on whether the two-year residency requirement still applies when applying for Form I-130 and subsequently, for adjustment of status.
Thank you for your guidance.
A: Yes, the 2YHRR still applies. You will need a J1 waiver in order to be approved for a green card base on marriage to a USC. I suggest you work with an immigration attorney
A:
The two-year home residency requirement (2YHRR) associated with your J-1 visa can indeed impact your ability to adjust status in the United States after marrying a U.S. citizen. Here's a breakdown of how this might affect your situation:
Existence of 2YHRR: If your J-1 visa was subject to the 2YHRR, this requirement generally remains with you until it's either fulfilled or waived. The requirement means you must spend two years in your home country before you can change to certain other visa statuses or adjust status to that of a lawful permanent resident (green card holder) in the U.S.
Impact on Adjustment of Status: When marrying a U.S. citizen and applying for a green card (adjustment of status) through Form I-130, the 2YHRR can be a significant obstacle. U.S. Citizenship and Immigration Services (USCIS) typically will not approve an adjustment of status application if you're subject to this requirement and haven't yet fulfilled or obtained a waiver for it.
Waiver Possibility: You have the option to apply for a waiver of the 2YHRR. The waiver process can be complex and depends on specific circumstances, including the reasons for requesting the waiver and the position of your home country's government.
Role of F-1 Visa: While your F-1 visa status allows you to study in the U.S., it doesn't automatically negate the 2YHRR from your J-1 visa. The requirement persists independently of your current visa status.
Advice: Given the complexities involved, especially in cases where the 2YHRR applies, it’s advisable to consult with an immigration attorney. They can provide guidance specific to your situation, including the feasibility and process of applying for a waiver.
It's important to handle this matter carefully, as proceeding with an adjustment of status application without addressing the 2YHRR can lead to complications, including the potential denial of your application.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
