Can she stay and get married after J1 visa expires?

[UkraineSF 0]

<!--quoteo(post=1690115:date=Mar 24 2008, 06:35 PM:name=dmauriceabcd)--><div class='quotetop'>QUOTE (dmauriceabcd @ Mar 24 2008, 06:35 PM) <a href="index.php?act=findpost&pid=1690115"><{POST_SNAPBACK}></a></div><div class='quotemain'><!--quotec-->Hi, my fiance has just exited an Au Pair program with a J1 exchange visa. What steps should we take at this point? Should we get married and file for a green card immediately? Or apply for a K1 visa and then get married and change her status. I also read somewhere that she would have to process the paperwork from her country (Thailand). Is this accurate? Any help would be greatly appreciated!!!!!!<!--QuoteEnd--></div><!--QuoteEEnd-->

Some J-1's are subject to 2 yr. HRR... Not sure if au Pair is or not.

Assuming no 2 yr HRR and if she wants to stay here you do not need another visa... you would need to marry then file I-130, I-485 and I-765. If she wants to go home then either a K-1 visa (if unmarried) or IR/CR-1 or K-3 visa if she is your spouse so she can re-enter.

Google searched and thought I'd bump this thread. I'm in a very similar situation. My girlfriend's j1 Visa expires in a month and we have been dating for 6 months. I was thinking of doing a k1 visa OR marrying her. The issue is, we both don't want to risk her not being able to get back into the US. From my understanding, a k1 visa is only if your significant other is not in the USA currently, correct?

My big question is, since my girlfriend's visa expires in a month, can we just take our time and get married at the end of the year? I personally had a New Years wedding time celebration in mind or somewhere around the holidays, so it gives us both time to invite friends and family, but I don't want it to hurt her status if she is here illegal for too long. Thoughts??

[Kathryn41 3,205]

Topic has been split from a 4 year old K-1 thread and started its own thread as circumstances, while similar, are different, and as the OP is considering getting married while in the US, the AOS forum is more appropriate than a K-1 forum.

It is best to start your own topic new even if there is an older thread that discusses the same issue as personal circumstances can be different and two different situations can confuse the issue and lead to inaccurate advice.

[grrrrreat 109]

Google searched and thought I'd bump this thread. I'm in a very similar situation. My girlfriend's j1 Visa expires in a month and we have been dating for 6 months. I was thinking of doing a k1 visa OR marrying her. The issue is, we both don't want to risk her not being able to get back into the US. From my understanding, a k1 visa is only if your significant other is not in the USA currently, correct?

My big question is, since my girlfriend's visa expires in a month, can we just take our time and get married at the end of the year? I personally had a New Years wedding time celebration in mind or somewhere around the holidays, so it gives us both time to invite friends and family, but I don't want it to hurt her status if she is here illegal for too long. Thoughts??

First, does your girlfriend's J-1 have a home residency requirement? If so, she either has to satisfy that or apply for a waiver before she can get any other immigration benefit. If you don't know, your first step is to find that out.

Second, yes a K-1 is a visa issued to somebody who wants to come to the U.S. to get married, so individuals who are present in the U.S. usually don't need it Theoretically, you could begin the K-1 process now by filing a I-129F, but it takes several months for the I-129F petition to be approved. Once it is approved, she leaves the U.S. and apply for the K-1 at an overseas consulate in her own country. Once she has the visa, she can travel to the U.S. for the purpose of getting married within 90 days, and then apply to adjust her status to lawful permanent resident. One scenario, if you timed it correctly, is to file the I-129F now and wait 6-7 months for approval, let her overstay the visa (but not by more than 180 days--see below), leave the U.S. to attend an overseas interview, re-enter with the visa, get married, and apply to adjust status. This seems like a lot of effort and money (and some risk) for someone that is already in the U.S.

Third, the route for someone who is already in the U.S. who gets married is to apply for adjustment of status. They wouldn't need the K-1 visa at all. An overstay is not a disqualification for adjusting status as the spouse of a U.S. citizen, although the overstay does have other consequences (see below). A scenario is possible where she overstays her current visa, marries toward the end of the year, and then applies to adjust status, but it has some risks and she likely wouldn't be able to leave the U.S. until she has adjusted status.

Finally, overstaying the J-1 visa status does have consequences. Most importantly, if she overstays for more than 180 days and then departs the U.S., she will incur a ban from reentering (for at least 3 years). This can be waived for spouses of U.S. citizens, but only if they can prove extreme hardship, and it takes much longer. Another consequence of course is that she is subject to being placed in removal proceedings and removed from the U.S. This would also incur a reentry ban. Finally, another consequence is that aliens who have overstayed often have to work harder to prove their marriage is bona fide, especially if someone marries after being placed in removal proceedings. She also can't work legally. So you have to consider all of that in deciding what to do.

Personally, I would marry as soon as I was ready and make the New Year's celebration more of a reception and less of a wedding.

Edited June 14, 2012 by grrrrreat

[UkraineSF 0]

Thanks for the very informative response! She has no two year requirement home stay. If she remains in the US it would be an approximate 3-4 month overstay, so about 100-120 days.

I'm just worried of a haste marriage looking bad to the USCIS and thought a k1 would be better which allows her to go home briefly and tell her family. Of course, this has pros and cons, as we are both worried a k1 can take longer than expected or worst even denied.

So, it seems our options are: get married soon before j1 expire next month, have her overstay and get married at the end of the year, or have her leave and file the k1 now while she is here and hope it works out fast.

[StvM 1]

Thanks for the very informative response! She has no two year requirement home stay. If she remains in the US it would be an approximate 3-4 month overstay, so about 100-120 days.

I'm just worried of a haste marriage looking bad to the USCIS and thought a k1 would be better which allows her to go home briefly and tell her family. Of course, this has pros and cons, as we are both worried a k1 can take longer than expected or worst even denied.

So, it seems our options are: get married soon before j1 expire next month, have her overstay and get married at the end of the year, or have her leave and file the k1 now while she is here and hope it works out fast.

Or she can file I-539 to change her status to B-1/B-2, which will get her couple of month of legal presence, and not to worry about overstay. Since Ukraine doesn't have 2-year requirement, should be easy task.

Edited June 16, 2012 by StvM

[DandT14 272]

Or she can file I-539 to change her status to B-1/B-2, which will get her couple of month of legal presence, and not to worry about overstay. Since Ukraine doesn't have 2-year requirement, should be easy task.

Based on what I've read in other posts, I wouldn't recommend that. She wouldn't want to give a false reason for needing to change her status. Just causes problems later.

[grrrrreat 109]

Or she can file I-539 to change her status to B-1/B-2, which will get her couple of month of legal presence, and not to worry about overstay. Since Ukraine doesn't have 2-year requirement, should be easy task.

To change to B1/B2, you have to prove that you do not intend to stay, which will cause problems when she files to adjust status several months later. Please be careful about instructing people to misrepresent immigration forms.

[UkraineSF 0]

Thanks for all the replies. So it seems like getting married now seems to be the best solution? She doesn't want to go through with a k1 - feels we'll be apart too long, she would need to find a job back in the Ukraine, doesn't have a place to stay (i guess her parents have a real small place with no extra room anymore) and the fact that she is already here seems more logical and cheaper in her eyes. is there even another option to keep her here longer (just to be a few more months for us to really make sure we aren't rushing into marriage) without overstaying illegally and without doing a k1?? Is there a k1 type of visa she can get while in the US? That would be perfect - no need to go home, allows us to not rush things etc. Her visa officially expires mid July, so an overstay or a marriage seems imminent with the later seems the most logical unless there are other options I am not aware of. She originally tried to change her status to school status but seems to have ditched that idea for financial reasons and dealing with the imcompetant college registration employees who kept giving her the run-around.

[Xanax 349]

No, there is not a k-1 type visa that will allow her to stay legally.

The only options available to you are: 1) marry and file AOS , 2) marry file cr-1 and go home 3) file k-1 and go home.

Trust me, if there was a k-1 you can apply for and stay in the US everyone would do it.

Edited June 18, 2012 by BrittandDan

[grrrrreat 109]

Thanks for all the replies. So it seems like getting married now seems to be the best solution? She doesn't want to go through with a k1 - feels we'll be apart too long, she would need to find a job back in the Ukraine, doesn't have a place to stay (i guess her parents have a real small place with no extra room anymore) and the fact that she is already here seems more logical and cheaper in her eyes. is there even another option to keep her here longer (just to be a few more months for us to really make sure we aren't rushing into marriage) without overstaying illegally and without doing a k1?? Is there a k1 type of visa she can get while in the US? That would be perfect - no need to go home, allows us to not rush things etc. Her visa officially expires mid July, so an overstay or a marriage seems imminent with the later seems the most logical unless there are other options I am not aware of. She originally tried to change her status to school status but seems to have ditched that idea for financial reasons and dealing with the imcompetant college registration employees who kept giving her the run-around.

No. If you're not sure about marrying, she can try to change her status to B-2 (tourist) using form I-539. But she will have to prove that she doesn't intend to stay permanently, which can be difficult. Anything she says in that application can be held against her when she tries to become a permanent resident, and misrepresentation can get her banned from the U.S.

[Alex and Sofya 7]

Or she can file I-539 to change her status to B-1/B-2, which will get her couple of month of legal presence, and not to worry about overstay. Since Ukraine doesn't have 2-year requirement, should be easy task.

Hi,

How do you know what contries have 2 year rule? My husband is from Russia. Thank you

[ceadsearc 516]

It isn't about the country, it's about who sponsored the visa. He needs to check his specific visa to see.

[Alex and Sofya 7]

It isn't about the country, it's about who sponsored the visa. He needs to check his specific visa to see.

He lost his passport years ago along with I-94. We were able to get a replacement of both documents this year. His I-94 has visa type J1 written on it with no other words. This is why the immigration officer is not sure if he is subject to two year rule or not.

[Little_My 464]

He doesn't have any copies of the visa anywhere? The funding source of the J-1 exchange program determines whether or not the visa holder is subject to the 2-year rule or not. If the program is partly or fully funded by the visa holder's home government or the US government, then the 2-year rule almost always applies. For example, for all I know, all Fulbright students are always subject to the home residency requirement, because Fulbright is a US state department program and therefor funded from US government money.

[Alex and Sofya 7]

He doesn't have any copies of the visa anywhere? The funding source of the J-1 exchange program determines whether or not the visa holder is subject to the 2-year rule or not. If the program is partly or fully funded by the visa holder's home government or the US government, then the 2-year rule almost always applies. For example, for all I know, all Fulbright students are always subject to the home residency requirement, because Fulbright is a US state department program and therefor funded from US government money.

Yes, he has no copies. He came to USA when he was 18 years old in 2000 (12 years ago), moved place to place. He was basicaly a teenager at that time.