Can a J-1 Visa Holder Get a Green Card?

Even if someone with J-1 status seems to meet the basic grounds of eligibility for U.S. lawful permanent residence, not everyone who came to the U.S. with a J-1 visa will be eligible to apply for a green card in the United States—at least, not right away. The J-1 visa has certain restrictions that can severely impact one's ability to apply for a green card in the near future.

These restrictions include the two-year foreign residence requirement, which applies to some J-1 holders under § 212(e) of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1182(e); as well as the issue of immigrant intent.

How the Two-Year Foreign Residence Requirement Affects J-1s' Ability to Get a U.S. Green Card

Certain J-1 visa holders must, by law, return home and be physically present in their home country for two years before they can apply for a green card in the United States. You might be subject to the two-year foreign residence requirement if any of the following circumstances apply to you:

• You participated in a program that was financed in whole or in part by an agency of the United States government, or by an agency of your home country's government.
• Your home country has been designated as one with a short supply of people with your skill set and/or specialized knowledge (see the Department of State's list, country by country).
• You received medical training in the United States as an intern or a resident.

How Do I Know Whether I Am Subject to I.N.A. § 212(e)?

When you applied for your J-1 visa at the U.S. consulate in your home country, a determination would have been made about whether or not you were subject to the two-year foreign residence requirement. You can check your Form DS-2019, which includes an endorsement from the consular officer indicating whether or not this restriction applies to you.

Your visa stamp will also include a statement about this restriction. If unsure about whether you are subject to § 212(e), you have the option to request an Advisory Opinion from the U.S. Department of State (DOS).

Be aware that if you were subject to § 212(e) and changed your status before satisfying the requirement, you are still subject.

Applying for a Waiver of the Two-Year Home Residency Requirement

If you are subject to § 212(e), you can apply for a waiver of the two-year foreign residence requirement. There are several grounds upon which one can make such an application.

How the Issue of Immigrant Intent Affects Your Ability to Get a U.S. Green Card

The other primary restriction of the J-1 visa is that it does not allow the visa holder to have what's called "immigrant intent." What this means is that, at the time when you applied for the J-1 visa, you had to demonstrate that you had the intent to return to your home country at the end of your program.

If you are otherwise eligible to apply for a green card in the United States now, be prepared to demonstrate that you did not have immigrant intent when you originally applied for J-1 status and that later, unexpected circumstances occurred to change this—for example, you met and married a U.S. citizen, and are applying for a green card as an immediate relative spouse.

If an employer is willing to sponsor you for a green card, and you aren't subject to the two-year home residence requirement, consider changing your status to H-1B (specialty technical worker) first. H-1B visa holders are allowed to have immigrant or "dual" intent.

Consular processing of your green card is always an option if you are concerned about immigrant intent. That means that you would leave the U.S. at the end of your H-1B stay and apply from your home country, without having to face dual intent issues. See Overview of the H-1B Visa Application Process for more.

Getting Legal Help

An immigration attorney will be able to review your case and advise you of your rights as a J-1 visa holder. If you are subject to § 212(e), an immigration attorney can assist you with the waiver process. If you are concerned about immigrant intent, an immigration attorney can advise you on the best strategy for applying for a green card based on your individual circumstances.