J1 to AOS or CR-1

[san809 0]

Hi, 

 

My partner is a New Zealander and I am a natural-born US Citizen. We have been together for about 8 years, and lived together for about 4.5 years in NZ. I am a Permanent Resident in New Zealand via a partnership visa track. My partner and I decided to do long-distance for me to return to the US to finish a grad-school program and then start my career in the US. He has been working in the US periodically on a J1 visa with a company that gives him a few months of work at a time, and he has a 30-day grace period on either side of his work contracts to travel in the USA. We are considering marriage and would like to live in the USA for the time being. From what I can tell, we have two options:

 

1) He is currently in the USA working on a J1 visa (he does not have a 2-year home requirement on his J1). We could get married while he is still in the USA, he could file for an AOS, EAD, and Travel Waiver. 

Question: What if the AOS is not approved prior to his J1 grace period expiring? 

Pros as I see them: We're able to live together in the USA right away. He is able to get work much sooner than waiting for CR-1.

Cons as I see them: Avoiding the 90-day rule. He will not have entered the US with the intention to marry, but it might not look like it to immigration. Him not being able to leave the USA until travel waiver comes through.

 

2) We get married outside of the USA and apply for the CR-1. For career purposes, I do not want to live overseas currently and leave my job, so we would essentially head back to NZ for a few weeks, get married, and then I'd fly back to the USA to continue working. We would then wait for the CR-1 to get approved (as I understand 1.5-2years) before he moved over here permanently, in which time we'd need to continue long distance.

Questions: Is the long distance thing going to raise flags for immigration? Can he continue to come in and work on a J1 visa with his current company for a few months at a time while awaiting the approval of the CR-1? 

 

Thanks for your help!

[S2N 121]

If he has a valid J-1 visa and while he is here you all get married and decide to adjust status, that’s perfectly legal. Also the 90 day rule is from FAM, not USCIS, so applies to the Department of State, not Homeland Security.

 

All things being equal, if he enters and you decide it makes sense for him to stay while he’s here, I’d take that approach over CR-1. ESTA/VWP, K-1, and B-1/B-2 AOS have a lot of disadvantages, but adjusting from other visas tends to be easier.

 

Also, before someone chimes in with the visa fraud comment entering knowing that there’s a possibility to adjust and contemplating it is not misrepresentation and BIA precedents are pretty pro-AOS for spouses when there are grey areas.

[Dashinka 25,584]

If you choose option one, once his AOS package is filed, he enters a period of authorized stay, so he will be fine regardless of his J1 status.  Even if the AOS is filed after the J1 status expires, the overstay will be forgiven since he is the spouse of a USC.

 

As to option 2, the LDR thing will not raise red flags as many couples pursuing a spousal visa via consulate processing are in the same boat.  I am not sure if he can keep using his J1, I assume so, but there may be more questions upon entry.

 

Good Luck!

[Crazy Cat 43,912]

13 hours ago, san809 said:

Hi, 

 

My partner is a New Zealander and I am a natural-born US Citizen. We have been together for about 8 years, and lived together for about 4.5 years in NZ. I am a Permanent Resident in New Zealand via a partnership visa track. My partner and I decided to do long-distance for me to return to the US to finish a grad-school program and then start my career in the US. He has been working in the US periodically on a J1 visa with a company that gives him a few months of work at a time, and he has a 30-day grace period on either side of his work contracts to travel in the USA. We are considering marriage and would like to live in the USA for the time being. From what I can tell, we have two options:

 

1) He is currently in the USA working on a J1 visa (he does not have a 2-year home requirement on his J1). We could get married while he is still in the USA, he could file for an AOS, EAD, and Travel Waiver. 

Question: What if the AOS is not approved prior to his J1 grace period expiring? 

Pros as I see them: We're able to live together in the USA right away. He is able to get work much sooner than waiting for CR-1.

Cons as I see them: Avoiding the 90-day rule. He will not have entered the US with the intention to marry, but it might not look like it to immigration. Him not being able to leave the USA until travel waiver comes through.

 

2) We get married outside of the USA and apply for the CR-1. For career purposes, I do not want to live overseas currently and leave my job, so we would essentially head back to NZ for a few weeks, get married, and then I'd fly back to the USA to continue working. We would then wait for the CR-1 to get approved (as I understand 1.5-2years) before he moved over here permanently, in which time we'd need to continue long distance.

Questions: Is the long distance thing going to raise flags for immigration? Can he continue to come in and work on a J1 visa with his current company for a few months at a time while awaiting the approval of the CR-1? 

 

Thanks for your help!

Since he is already in the US, I would probably go with option #1.  There is no 90 day rule.  Just be aware of the work and travel restrictions.

Edited Sunday at 02:27 PM by Crazy Cat

[S2N 121]

It’s also worth noting that there’s no prohibition of entering the U.S. with intent to marry. People do that all the time.

 

The prohibition that leads to a ban is on misrepresentation to a CBP officer or other U.S. government official that you did not have immigrant intent (that’s an important distinction from actually having immigrant intent that’s often missed in these discussion.)

 

What that means is never lie in any circumstance but never volunteer more than necessary to answer any question asked. Simply entering on a non-immigrant visa and adjusting is not misrepresentation.

Edited Sunday at 04:05 PM by S2N

[pushbrk 13,497]

He entered with a work visa to work.  While he's here, if you want to get married and adjust status, that's perfectly fine.  Be aware though that until about six months after you file, he should not leave the USA. If he does before getting advance parole, he'll be stuck and you'll have to start over with an immigrant visa process.  He won't be able to work between the time his work ends and getting the new work authorization.

 

Any "overstay" is simply forgiven.  His status changes to "pending adjustment of status" once you file.