J1 visa that is terminated and marriage

[ChristopherCham 3]

Hello I am new to this forum and not entirely sure if I am posting in the correct place but i could use some help and direction. My fiance came here from Thailand on a J1 visa around 5 years ago. She was part of an Au pair family and things did not work out for her with the family. She was taken advantage of and was placed with another family and was expected to care for a child that was autistic and was not really experienced enough to care for the child and other children. She then found work here in Ohio and continued to work this entire time. She then moved in with a boyfriend and until about 6 months ago lived with him and they never married and it was mostly a bad situation all around. It was very difficult for her to get out of that situation but she finally did. I met her at a restaurant that we work at and I quickly fell in love with her. We started living together quickly and started spending the majority of our time together. I want to marry her and i have already got a marriage licence and we plan to marry on the 4th of February. I have some fear about the process of getting her status updated since she has been here so long and also been working. She has become a part of my family and I truly love her and want to stay with her forever but i have little direction or really anyone to help me through this process. Any suggestions or insight would be greatly appreciated.

[aaron2020 11,651]

Does her J1 have a 2 years home residency requirement?

 

Did she claim to be a US citizen to get a job?  What documents did she use?

[Khallaf 646]

4 minutes ago, ChristopherCham said:

Hello I am new to this forum and not entirely sure if I am posting in the correct place but i could use some help and direction. My fiance came here from Thailand on a J1 visa around 5 years ago. She was part of an Au pair family and things did not work out for her with the family. She was taken advantage of and was placed with another family and was expected to care for a child that was autistic and was not really experienced enough to care for the child and other children. She then found work here in Ohio and continued to work this entire time. She then moved in with a boyfriend and until about 6 months ago lived with him and they never married and it was mostly a bad situation all around. It was very difficult for her to get out of that situation but she finally did. I met her at a restaurant that we work at and I quickly fell in love with her. We started living together quickly and started spending the majority of our time together. I want to marry her and i have already got a marriage licence and we plan to marry on the 4th of February. I have some fear about the process of getting her status updated since she has been here so long and also been working. She has become a part of my family and I truly love her and want to stay with her forever but i have little direction or really anyone to help me through this process. Any suggestions or insight would be greatly appreciated.

this link might help you in knowing if she can adjust status from the J1

 

https://www.boundless.com/immigration-resources/how-to-change-your-status-from-a-j-1-visa-to-a-green-card-through-marriage/

 

I have little knowledge of what can be done but might be helpful

[ChristopherCham 3]

She did not claim to be a US citizen she has been paid under the table. I am unclear about the 2 year home residency requirement. I have asked her about this and she too is unclear.

[ChristopherCham 3]

11 minutes ago, aaron2020 said:

Does her J1 have a 2 years home residency requirement?

 

Did she claim to be a US citizen to get a job?  What documents did she use?

She did not claim to be a US citizen, the people were aware of her situation and paid her under the table. 

[USS_Voyager 1,971]

20 minutes ago, ChristopherCham said:

Hello I am new to this forum and not entirely sure if I am posting in the correct place but i could use some help and direction. My fiance came here from Thailand on a J1 visa around 5 years ago. She was part of an Au pair family and things did not work out for her with the family. She was taken advantage of and was placed with another family and was expected to care for a child that was autistic and was not really experienced enough to care for the child and other children. She then found work here in Ohio and continued to work this entire time. She then moved in with a boyfriend and until about 6 months ago lived with him and they never married and it was mostly a bad situation all around. It was very difficult for her to get out of that situation but she finally did. I met her at a restaurant that we work at and I quickly fell in love with her. We started living together quickly and started spending the majority of our time together. I want to marry her and i have already got a marriage licence and we plan to marry on the 4th of February. I have some fear about the process of getting her status updated since she has been here so long and also been working. She has become a part of my family and I truly love her and want to stay with her forever but i have little direction or really anyone to help me through this process. Any suggestions or insight would be greatly appreciated.

 

I assume you're a US citizen, correct? Yes, you can marry her. She can apply for a green card based on that marriage with you. After you get married, file form I-130, I-485, I-765 and I-131 concurrently. I-130 is the petition for an immediate relative (your wife) to a US citizen (yourself). Form I-485 is Adjustment of status to Lawful Permanent Resident (Green card) for her. Form I-765 is Employment Authorization so she can work legally and form I-131 is Advanced Parole so she can travel and return to the US.

 

VERY IMPORTANT NOTE: Because she entered the US legally with a valid visa, that is why she can legally change her status to LPR. Basically the part that she became "illegal immigrant" and overstaying her visa is "forgiven" because she married you. However, she MUST NOT leave the US until at least her I-131 is approved. Otherwise, she will NOT be able to enter the US for 10 years.

Edited January 3, 2019 by USS_Voyager

[Khallaf 646]

4 minutes ago, ChristopherCham said:

She did not claim to be a US citizen, the people were aware of her situation and paid her under the table. 

Does the two-year home residency requirement apply to you?

There are multiple ways to find out:

1. Check your visa. Toward the bottom of your visa (a document that’s affixed to a page of your passport), look for a note that indicates whether or not you’re subject to the requirement:

• If you are, the notation might read: “BEARER IS SUBJECT TO INA(212)E. TWO YEAR RULE DOES APPLY.” (This refers to the specific section of the Immigration and Nationality Act creating the requirement.)
• If you are not, the notation might read: “NOT SUBJECT TO TWO-YEAR RESIDENCE REQUIREMENT.”

IMPORTANT: Not all J-1 visas will contain this note. If you don’t find this note in your visa, you must try one of the other following methods instead.

---

2. Check your Form DS-2019. This form (officially called the “Certificate of Eligibility for Exchange Visitor (J-1) Status”) should indicate whether the requirement applies to you. You should have received this form from your program sponsor prior to applying for your J-1 visa. If you can’t locate your Form DS-2019, contact your program sponsor.

1 minute ago, USS_Voyager said:

 

I assume you're a US citizen, correct? Yes, you can marry her. She can apply for a green card based on that marriage with you. After you get married, file form I-130, I-485, I-765 and I-131 concurrently. I-130 is the petition for an immediate relative (your wife) to a US citizen (yourself). Form I-485 is Adjustment of status to Lawful Permanent Resident (Green card) for her. Form I-765 is Employment Authorization so she can work legally and form I-131 is Advanced Parole so she can travel and return to the US.

 

VERY IMPORTANT NOTE: Because she entered the US legally with a valid visa, that is why she can legally change her status to LPR. Basically the part that she became "illegal immigrant" and overstaying her visa is "forgiven" because she married you. However, she MUST NOT leave the US until at least her I-131 is approved. Otherwise, she will be able to enter the US for 10 years.

if she is here on a J1 I do know that she might be subject to the residency requirement, that means she might not be able to adjust without going the other CR1 route of her going back to her home country

Edited January 3, 2019 by Khallaf

[EM_Vandaveer 2,364]

16 minutes ago, ChristopherCham said:

She did not claim to be a US citizen she has been paid under the table. I am unclear about the 2 year home residency requirement. I have asked her about this and she too is unclear.

She needs to figure out if she has the 2-year home residency requirement because if she does she HAS TO obtain a waiver BEFORE she can file for a GC (after you get married, of course as that'd be her basis for filing for a GC).

Edited January 3, 2019 by EM_Vandaveer

[EM_Vandaveer 2,364]

2 minutes ago, USS_Voyager said:

 

I assume you're a US citizen, correct? Yes, you can marry her. She can apply for a green card based on that marriage with you. After you get married, file form I-130, I-485, I-765 and I-131 concurrently. I-130 is the petition for an immediate relative (your wife) to a US citizen (yourself). Form I-485 is Adjustment of status to Lawful Permanent Resident (Green card) for her. Form I-765 is Employment Authorization so she can work legally and form I-131 is Advanced Parole so she can travel and return to the US.

 

VERY IMPORTANT NOTE: Because she entered the US legally with a valid visa, that is why she can legally change her status to LPR. Basically the part that she became "illegal immigrant" and overstaying her visa is "forgiven" because she married you. However, she MUST NOT leave the US until at least her I-131 is approved. Otherwise, she will NOT be able to enter the US for 10 years.

Let's not forget the possibility that her J-1 had a 2-year home residency requirement. If it did, they can marry but cannot file for AOS without obtaining a waiver first, otherwise AOS would be denied and she would potentially be deported.

[NikLR 13,220]

~~moved to what visa do I need from student and exchange visas.  This may be moved again to AOS from work, tourist and student visas should her visa not contain the 2 year requirement OR IR1/CR1 process and procedures if it does ~~

[USS_Voyager 1,971]

2 minutes ago, EM_Vandaveer said:

Let's not forget the possibility that her J-1 had a 2-year home residency requirement. If it did, they can marry but cannot file for AOS without obtaining a waiver first, otherwise AOS would be denied and she would potentially be deported.

Of course, I forgot about that. OP, please check her J-1 visa about the 2 year rule.

[geowrian 22,335]

Usually Au pairs do not have the 2YHRR, but definitely check to confirm this for her individual case.

 

And she should have reported her income on taxes, even if it was under the table. Not an immigration issue, but Uncle Sam wants their cut.

[ChristopherCham 3]

1 minute ago, USS_Voyager said:

Of course, I forgot about that. OP, please check her J-1 visa about the 2 year rule.

I will check her visa tonight and see if it says anything about the 2 year rule, I asked her about it and she says she doesn't know. 

[ChristopherCham 3]

Just now, geowrian said:

Usually Au pairs do not have the 2YHRR, but definitely check to confirm this for her individual case.

 

And she should have reported her income on taxes, even if it was under the table. Not an immigration issue, but Uncle Sam wants their cut.

We have been advised to not be honest about her working and I'm not really comfortable with being dishonest about any of this when the time comes to tell how we met and everything. There is concern that the people that have employed her will get into trouble

[geowrian 22,335]

2 minutes ago, ChristopherCham said:

We have been advised to not be honest about her working and I'm not really comfortable with being dishonest about any of this when the time comes to tell how we met and everything. There is concern that the people that have employed her will get into trouble

No idea who advised you about it, but never lie to anybody in immigration. The penalty is a permanent bar.

Unauthorized employment isn't a bar for her AOS anyway.

 

As for the IRs, they don't care about immigration status...just their cut of the income.

Edited January 3, 2019 by geowrian