J-1 visa holder applying for adjustment of status, do I need to file an i-130?

[OldUser 9,692]

@katywalla read my comment posted earlier.

 

You're OK marrying now, filing for adjustment, and leaving the US for trip in December if you have advance parole or green card then.

 

Why is it OK to adjust now? Because you didn't have intent of staying in the US when you last entered to the country.

 

However, if you leave now without filing for adjustment and plan to reenter with intent to adjust, then you have potential issue with misrepresentation / fraud in the future. 

 

Most of AOS applicants have interviews nowadays. At the interview adjudicator may dig deep into your relationship timeline, reasons for marriage etc. If they suspect you played the system by entering the US with immigrant intent on non-immigrant visa, you'll have serious issues.

 

Also, the chance of reentering on J-1 after marrying US citizen is also decreasing significantly. That's why it would only be safe to leave on Advance Parole, because then you would be upfront to CBP: yes, I married, yes I have immigrant intent, here's Advance Parole.

 

Edited Wednesday at 02:24 PM by OldUser

[Crazy Cat 44,303]

52 minutes ago, katywalla said:

so finding a time to get married, file the paper work, and wait for the travel document is difficult.

Yes, legal immigration is difficult.  In our case, my wife and I (already married) were separated for a year during the process before she immigrated to the US.  

[OldUser 9,692]

5 minutes ago, Crazy Cat said:

Yes, legal immigration is difficult.  In our case, my wife and I (already married) were separated for a year during the process before she immigrated to the US.  

Illegal route may be even worse :

1) OP marries in October

2) Leaves the US

3) Attempts to reenter the US on J-1 with intent to adjust

4) Gets caught by CBP. Held in secondary, questioned, phone and personal belongings searched

5) J-1 is cancelled, entry denied, sent back home

6) Now OP is facing 3+ years consular process overseas AND needs to seek waiver for misrepresentation

[mam521 2,494]

You have 2 options, essentially: 

 

1. Marry, adjust status, stay put until you have Advanced Parole

2. Marry, leave and complete Consular Processing, which will have you away for 2+ years

 

You can't have your cake and eat it too, unfortunately.  You'll have to decide your priorities.  Is it finishing up your assignment with your J1 and being with your partner or is it heading back to the UK to visit?  If going back to the UK for Christmas is imperative but so is being with your partner, the closest thing to having your cake is to marry now, celebrate in October and cross your fingers and hope you get AP in time for December.  If you don't get AP in time, plan to visit once it's been awarded.   

[katywalla 2]

Thank you all, I think we will stick to October and push the trip back until the travel document arrives. Appreciate the help!

[MacPara 1]

3 hours ago, katywalla said:

Okay, I'm just struggling to understand when is an appropriate time to do antyhing. I've been here for a year, my partner and I were together for 3 years before that. I travel home regularly to see family and friends, so finding a time to get married, file the paper work, and wait for the travel document is difficult. It seems as though you are stuck in the country from the moment you can actually marry until then process you, which is also more difficult because I entered on a J-1...

I am by no means trying to get around immigration law or commit fraud, I am trying to understand how a J-1 holder can apply for adjustment of status without it being assumed its fraud or will malintent.

Yes, it's a difficult system to navigate. I was on a J-1 once, so I remember the struggle. The "you can't leave once you file" statement only applies for AoS. The alternative is that you maintain the timeline you laid out in your original post but then you stay in the UK after visiting your family for Christmas and file for the GC through the consulate. That would prohibit you to reenter the US on a non-immigrant via like your J-1 as your GC application has now shown your intent to immigrate. I strongly suggest you heed the advice from the other folks who commented here and have your family visit you in the US for Christmas instead, if you cannot do the paperwork right now.