To stay or not to stay? (J-1 and K-3)

[phiandjen 0]

Hi Guys!!

The case concerns my boyfriend, a 27-year-old French male who has currently a J-1 visa (expiration date: 09/2006 – the total of 18 months will be done). We would like to stay together in the US and we would also like that he works if this is possible after his J-1 visa. He applied for the H1B in the beginning of June but the quota was already reached. Just for info, France is in the list of countries allowing the Direct Consular Filing.

We looked for several solutions and in our mind, there are only two possibilities:

The first one would be a mix of a tourist visa starting in October and ending in December. Then he would come back in 2007 as a student for studies starting in Spring.

The second possibility would be a spousal visa.

The 1st question for these two options is could you confirm me that in any option, it is not recommended to not come in the US as a tourist during the process of the visas (F1 or K3)?

Now, only about the spousal visa:

- if we get married now in the US, will he have to go back to France before the end of his visa, or could he wait till 10/2006? (For J-1 there is an additional month after the expiration date)?

- If he goes to the French Consulate in France to fill the required documents before his J-1’s expiration date, could he come back to the US using his J-1 visa? Or is it preferable that he stays in France? Of course, if he comes back, he will return to France before the ending date because we don’t want to put him in an illegal situation.

Thank you for reading,

Have a great sunny day

[aussiewench 9]

You can marry and adjust status without leaving the US if one is not subject to the 2 year home rule. You can read a little more on that HERE

[MPGGPM 0]

Hi Guys!!

The case concerns my boyfriend, a 27-year-old French male who has currently a J-1 visa (expiration date: 09/2006 – the total of 18 months will be done). We would like to stay together in the US and we would also like that he works if this is possible after his J-1 visa. He applied for the H1B in the beginning of June but the quota was already reached. Just for info, France is in the list of countries allowing the Direct Consular Filing.

We looked for several solutions and in our mind, there are only two possibilities:

The first one would be a mix of a tourist visa starting in October and ending in December. Then he would come back in 2007 as a student for studies starting in Spring.

The second possibility would be a spousal visa.

The 1st question for these two options is could you confirm me that in any option, it is not recommended to not come in the US as a tourist during the process of the visas (F1 or K3)?

Now, only about the spousal visa:

- if we get married now in the US, will he have to go back to France before the end of his visa, or could he wait till 10/2006? (For J-1 there is an additional month after the expiration date)?

- If he goes to the French Consulate in France to fill the required documents before his J-1’s expiration date, could he come back to the US using his J-1 visa? Or is it preferable that he stays in France? Of course, if he comes back, he will return to France before the ending date because we don’t want to put him in an illegal situation.

Thank you for reading,

Have a great sunny day

As far as I know, if you marry him , even though his J-1 has expired, he can still remain in the USA. It`s a bit complicated though, because you would then have to adjust his status to become a US citizen, which is perfectly legal. He can remain in the USA during the process for his green card.

The complicated part comes if he has a problem and is denied AOS for whatever reason. If that were to happen, and he for whatever reason could not become a permanent resident, I am not sure then....what would happen to him. Theoretically, he`d have to go back then...and if so....by then he would have overstayed his visa.......making matters worse.

If he gets his greend card....no problems. But if he doesn`t....then there might be trouble. (not sure how to advise you on THOSE consequences etc).

BUT, regardless....the VERY first thing you need to check is to see if his J-1 visa has a 2 year residency requirement. That is the most important issue, because if he is subject to it, no matter what....he will have to go back to France for 2 years and serve it, unless you can apply for and actually get a waiver of that rule.

J-1`s are very tricky visas .......and you need to research this a bit more. If he does not have the 2 year rule, you are in much better shape (than say....my wife who DID have it......and DID go back for two years...and is still there). Hopefully you don`t have that issue.

Other things....

It is okay to marry in the USA while he is on J-1 status (I married my wife while she was). You can also have him try to apply for a tourist visa , but might be difficult for him to get. But he IS legally able to try.

Lastly...if you did plan for him to leave in Sept, then come back shortly with the tourist visa, and then still apply right after that for yet another visa........I think you might be expecting a bit much . To try and accomplish all that..........and to actually succeed........might be a difficult task.

You might want to consult an attorney. (some even give free consultations...just search around).

[phiandjen 0]

First of all, I would like to thank you because it's is very heartwarming to know that people are ready to help you. Thank you!!

I checked about this "new" rule for us, and oufff, no restriction for him. I am sorry for you MPGGMP... I have difficulties to imagine your situation but I am with you of all heart.

Here are a couple of new questions :

If we choose an AOS, does that mean he will have to wait in the US till the approval of his situation? Will he be able to work after the expiration of his J-1?

After what said MPGGMP, it looks a little risky to do that if they decide to refuse this AOS. I think we will prefer to stay in a safe situation, and using the Direct Consular Filling which also looks faster.

What do you think guys?? what wouold u do?

Phi and Jen

[MPGGPM 0]

First of all, I would like to thank you because it's is very heartwarming to know that people are ready to help you. Thank you!!

I checked about this "new" rule for us, and oufff, no restriction for him. I am sorry for you MPGGMP... I have difficulties to imagine your situation but I am with you of all heart.

Here are a couple of new questions :

If we choose an AOS, does that mean he will have to wait in the US till the approval of his situation? Will he be able to work after the expiration of his J-1?

After what said MPGGMP, it looks a little risky to do that if they decide to refuse this AOS. I think we will prefer to stay in a safe situation, and using the Direct Consular Filling which also looks faster.

What do you think guys?? what wouold u do?

Phi and Jen

Hi,

Yeah.....if there was any other way for my wife and I to get around this rule...believe me..we would have.

Too many complications in our situation.......

Regarding your questions....

I would imagine that if he does NOT have that 2 year rule, then he can remain and try for AOS. He can apply for the work visa and hopefully recieve it quickly.

I am still unsure what the ramifications would be if he applied for AOS.....and for whatever reason was denied. I think that would be unlikely, but I can understand your caution .....with the vagueness of the US immigration process. I can understand your need to be careful.

I still feel the best option, especially since you have so many questions, is to get a free consultation with a lawyer (hopefully a good and knowledgeable one). Many offer free consultations.....or you can find one that charge a minimal fee (like $50 or so). I think that would be the best course for you to follow so you can be sure and to make the best decisions.

The knowledge regarding J-1's and other student visas on this forum...are are pretty limited , and you're best bet is to get professional help.

Good luck

[Kez/JWolf 6]

He would not have any greater risk of doing AOS from his J1 than anyone else doing AOS from anyother visa....

Everyone has the chance of being denied.... just because you do AOS from K1 or K3 does not gaurentee you will be approved at AOS interview....

There is a Guide at the top that explains exactly how to do AOS when someone is already here in the States...

http://www.visajourney.com/forums/index.ph...page=i130guide2

Hope this will help

Kezzie

[MPGGPM 0]

He would not have any greater risk of doing AOS from his J1 than anyone else doing AOS from anyother visa....

Everyone has the chance of being denied.... just because you do AOS from K1 or K3 does not gaurentee you will be approved at AOS interview....

There is a Guide at the top that explains exactly how to do AOS when someone is already here in the States...

http://www.visajourney.com/forums/index.ph...page=i130guide2

Hope this will help

Kezzie

True , everyone has a chance of being denied.......but the difference from a K-1 and K-3 is that they are abroad, and if denied, suffer no penalty of overstaying. This is as opposed to someone who is IN the USA. If THEY are denied, for whatever reason, they would be here in the USA...and their original visa might have expired.......and hence, they may have created more problems because of it.

[Kez/JWolf 6]

Same goes for any visa holder they all expire or are revoked when you file for AOS.... so its no diffrent....

There are risks in every option with immigration.... nothing is for sure...

Kezzie

[aussiewench 9]

Same goes for any visa holder they all expire or are revoked when you file for AOS.... so its no diffrent....

There are risks in every option with immigration.... nothing is for sure...

Kezzie

I agree Kezzie. J-1 visa = they were granted entry on a visa that was used for its intent and as long as one is otherwise elligible there is no more chance of denial then if one entered on a K visa. Many members of VJ have married whilst one was on a J-1 or F-1 visa and successfully adjusted status. It is perfectly legal to do so.

phiandjen

Read the guide in the link Kezzie posted earlier. All the best to you.

[MPGGPM 0]

Same goes for any visa holder they all expire or are revoked when you file for AOS.... so its no diffrent....

There are risks in every option with immigration.... nothing is for sure...

Kezzie

The difference I was trying to point out is that someone on a k-3 , even when they arrive in the USA, has 2 years of legal status on that visa. And they can even leave and re-enter the country during that time on it. By then the AOS would be done and they would never have been out of lawful status.

And although a K-1 expires in 90 days, according to what I have read, they can remain for 6 more months without creating any issues of overstaying. That gives them about 9 months to do AOS and get a decision.

In her case...her husband's J-1 visa expires in less than a month. Then he will be out of status. And although most likely the AOS would go through and he would be granted the green card, she should still check into it carefully and take into account all possibilities......which includes what would happen to them if for some reason, they were denied.

Below is an excerpt of an article I read which points out a few things.

The CIS does not consider the time that an application for adjustment of status to automatically extend lawful nonimmigrant status. This means that while an application for adjustment of status is pending, the applicant may be accruing illegal status if her tourist, working or student status has expired. Although section 245k of the Immigration Act grants applicants a six month grace period of unlawful status before being denied eligibility for adjustment of status, if that six month period expired while the adjustment was pending, refiling of the application for adjustment of status will result in a denial based upon unlawful status.

Edited August 6, 2006 by MPGGPM

[Kez/JWolf 6]

please provide a link to that quote....

Kezzie

[aussiewench 9]

Same goes for any visa holder they all expire or are revoked when you file for AOS.... so its no diffrent....

There are risks in every option with immigration.... nothing is for sure...

Kezzie

The difference I was trying to point out is that someone on a k-3 , even when they arrive in the USA, has 2 years of legal status on that visa. And they can even leave and re-enter the country during that time on it. By then the AOS would be done and they would never have been out of lawful status.

And although a K-1 expires in 90 days, according to what I have read, they can remain for 6 more months without creating any issues of overstaying. That gives them about 9 months to do AOS and get a decision.

In her case...her husband's J-1 visa expires in less than a month. Then he will be out of status. And although most likely the AOS would go through and he would be granted the green card, she should still check into it carefully and take into account all possibilities......which includes what would happen to them if for some reason, they were denied.

Below is an excerpt of an article I read which points out a few things.

The CIS does not consider the time that an application for adjustment of status to automatically extend lawful nonimmigrant status. This means that while an application for adjustment of status is pending, the applicant may be accruing illegal status if her tourist, working or student status has expired. Although section 245k of the Immigration Act grants applicants a six month grace period of unlawful status before being denied eligibility for adjustment of status, if that six month period expired while the adjustment was pending, refiling of the application for adjustment of status will result in a denial based upon unlawful status.

Marriage to a USC however changes much. As I said, if one is married to a USC, is in the US legally, is otherwise elligible, THEY CAN adjust status with NO more risk of denial then if entered on a K visa.

I too am very interested to see where this was quoted from.

[Kez/JWolf 6]

The fact that the quote starts "The CIS" makes me think this is outdated info...

Has not been called CIS for a long time.....

Kezzie

[aussiewench 9]

Same goes for any visa holder they all expire or are revoked when you file for AOS.... so its no diffrent....

There are risks in every option with immigration.... nothing is for sure...

Kezzie

The difference I was trying to point out is that someone on a k-3 , even when they arrive in the USA, has 2 years of legal status on that visa. And they can even leave and re-enter the country during that time on it. By then the AOS would be done and they would never have been out of lawful status.

And although a K-1 expires in 90 days, according to what I have read, they can remain for 6 more months without creating any issues of overstaying. That gives them about 9 months to do AOS and get a decision.

In her case...her husband's J-1 visa expires in less than a month. Then he will be out of status. And although most likely the AOS would go through and he would be granted the green card, she should still check into it carefully and take into account all possibilities......which includes what would happen to them if for some reason, they were denied.

Below is an excerpt of an article I read which points out a few things.

The CIS does not consider the time that an application for adjustment of status to automatically extend lawful nonimmigrant status. This means that while an application for adjustment of status is pending, the applicant may be accruing illegal status if her tourist, working or student status has expired. Although section 245k of the Immigration Act grants applicants a six month grace period of unlawful status before being denied eligibility for adjustment of status, if that six month period expired while the adjustment was pending, refiling of the application for adjustment of status will result in a denial based upon unlawful status.

Marriage to a USC however changes much. As I said, if one is married to a USC, is in the US legally, is otherwise elligible, THEY CAN adjust status with NO more risk of denial then if entered on a K visa.

I too am very interested to see where this was quoted from.

doing a quick google I found the source http://www.asianjournal.com/print.php?a=8634 It is an asian journal, NOT USCIS information. It is also an article about Visa Screens for nurses. Even if this was factual, it has nothing to do with adjusting status after marriage to a USC after being in the US on a J-1 visa.

Kezzie

The term CIS is a common one and just a shortened version of USCIS. I think you may be confusing the term with INS.

Edited August 6, 2006 by aussiewench

[Kez/JWolf 6]

Ah thank you aussiewench..... Good call on the quote..

Kezzie