Effect of AOS on ongoing J-1 status?

[hekot 1]

Hi all,

I have done a lot of reading today on VJ and elsewhere, but would love some more help with my particular situation.

Some background: I am a Canadian who has been in the US in non-immigrant status pretty much continuously since 1995 (maybe some kind of a record??). I was here on an F-1 for college from 1995-2000 (including 1 year of OPT), then on TN-1 status for 2 years from 2000-2002. No overstays, or removal orders, or criminal record.

My current status began in 2002, when I started grad school at a US university under J-1 status. I graduated and received my Ph.D. in July 2009, and then began my post-completion Academic Training period, as a post-doctoral fellow at a different university. (Postdocs are eligible for up to 3 years of AT in two 18-month chunks; my first chunk of AT authorization is good until March 2011, my second would end in September 2012). I plan to stay in my current job into 2012. To the best of my knowledge I am not subject to the 2-year home residency requirement: no government funding from the US or Canada; no Fulbright or other exchange scholarships; Canada has no skills list; no notation on any of my J-1 documents.

My US citizen girlfriend and I will be getting married in late April, 2011. We have been together since 1998 (we met at college in the US), and have lived together off and on since then. Most recently we have lived together in the US since 2007.

I understand that after we are married I can apply for an adjustment of status from J-1 to LPR. I have a few specific questions about what happens to my J-1 status (work authorization and ability to re-enter the country) during this process:

1) After we are married, but before I file for an AOS, is my ongoing J-1 status jeopardized or changed in any way? Will I run into problems if I leave and re-enter the country (e.g. for a honeymoon)? Does being married to a USC raise suspicion of immigrant intent?

2) After I file for an AOS, but before I receive my EAD, am I eligible to continue in my current job (i.e. under authorization of my not-yet expired J-1)?

3) After I file for an AOS, but before I receive my Advanced Parole, am I eligible to leave and re-enter the country using my J-1 status?

Thanks so much, all!

-H

[Harpa Timsah 13,258]

1. No, J-1 is not jeopardized simply by getting married. However, you should not leave and reenter the country, because you are intending to AOS. You could get denied at the border (small chance but possible). More importantly, it is illegal to enter on a non-immigrant visa with the intent to immigrate. That is the only tricky thing going on here... You are allowed to AOS if you are in the US... however, you should not be using your J-1 at the border to get the ability to AOS-in country. I have argued elsewhere that the "intent" issue is very problematic when dealing with long-term non-immigrant US residents, and one could argue that you must be back at your work etc etc. However, VJ users can only advise on the letter of the law, not the spirit of the law. The letter of the law is that you cannot enter on a non-immigrant visa with the intent to immigrate. After you get married, apply for AOS, and stay here a few months.

2. Yes.

3. No. Once you turn in your paperwork, your status is "AOS pending." You can continue to work on your previous EAD, but you are not permitted to travel on your J-1 visa any more. You will get your Advance Parole document in 2- 3 months, so you will have to remain in the US during that time. If you leave the US before you get that document, you will abandon your AOS application automatically.

If you don't like the travel restrictions involved with AOS, you could file a normal spousal visa petition (IR-1/CR-1). You could live in the US just as you are with your J-1 visa, travel freely, and then interview in Canada and pick up your immigrant visa there, and come back to the US on your immigrant visa. You would activate your new status when you enter the US on the CR-1 visa, and there would be no overlap with the J-1.

Hope that helps, good luck!

Edited December 1, 2010 by Harpa Timsah

[snapshaps 0]

I'm a J1 postdoc, I filed the AOS in October. The following responses are based of what the university's visa office told me and what I've been able to figure out for myself. Hopefully at least some of it is correct.

1) After we are married, but before I file for an AOS, is my ongoing J-1 status jeopardized or changed in any way? Will I run into problems if I leave and re-enter the country (e.g. for a honeymoon)? Does being married to a USC raise suspicion of immigrant intent?

I was advised not to leave the country after the marriage and before the AP and I followed this advice and stayed away from foreign conferences and workshops. I guess it depend on what risks you're willing to take. Giving what you said in this post you do have immigration intent so if the officer at the border happens to ask you something to that effect you'll have to answer truthfully which would probably mean that wouldn't be let in. However, he may not find out that you're married, it's not something they usually ask of me when I enter the country.

2) After I file for an AOS, but before I receive my EAD, am I eligible to continue in my current job (i.e. under authorization of my not-yet expired J-1)?

Yes, according to the visa office at my university. I'm still employed as a J1 since the status remains valid. However, they probably cannot extend your status, so you have to get your EAD before your status expires.

3) After I file for an AOS, but before I receive my Advanced Parole, am I eligible to leave and re-enter the country using my J-1 status?

No, you cannot enter into a non-immigrant status with an AOS pending. (Someone should probably confirm this?).

Edited December 1, 2010 by snapshaps

[snapshaps 0]

Also, keep in mind what was said in this post: http://www.visajourney.com/forums/topic/285131-urgent-need-advice-on-how-to-file-aos/ .

It is the last date of entry on the J! that counts when they consider intent. Even though you have been in the US for years you may want to make sure you don't enter the country right before you get married to avoid a suspicion of immigration intent (which, apparently, is not enough to deny you but would probably be best to avoid anyways).

[hekot 1]

Thank you both for your incredibly helpful and speedy answers!

... because you are intending to AOS.

...Giving what you said in this post you do have immigration intent ...

If you reread my post, you'll see that I was careful not to say that I plan to file for an AOS, only that I understood that I 'can' do so after I marry. I hope trying to understand the law is not enough to establish immigrant intent!

Actually, as Harpa points out, intent really does seem to be the key issue in my situation. My question #1 was really asking if the fact that I am married to a USC changes anything in the eyes of the officer at the POE. My fiancee and I have been together for more than 10 years, and I have entered the country many times on non-immigrant visas during this period, traveling with and without her. My J-1 work is certainly legitimate, and not just a ruse to get into the country to get married. I also don't have any plans to stay in the US after the end of my J-1 status. Thus far, my experience at the border has been similar to snapshaps': no questions about my personal life; in fact, generally no questions at all, just a quick stamp-stamp. However, since the stakes are so high, and the latitude given to USCIS so broad, it seems like it would be wise not to try to travel on a J-1 as the spouse of a US citizen. Anyone got some good ideas for honeymoon spots in the good old USA?

I am very glad to hear that the answer to question 2 is yes. I also dug up this document from NAFSA which outlines the law (annoyingly fuzzy) as it applies to F-1 students in the same situation. As that document points out, there's something inconsistent about the J-1 still being valid for employment, but not for travel. The logic seems to be that you shouldn't be punished for the USCIS waiting time between filing for AOS and getting an EAD, but yet that same logic doesn't apply to the lag between filing for AOS and getting APD. Don't get me wrong, I've been dealing with INS/USCIS for long enough to know not to expect consistency, but it does make it harder to know what to do.

If you don't like the travel restrictions involved with AOS, you could file a normal spousal visa petition (IR-1/CR-1). You could live in the US just as you are with your J-1 visa, travel freely, and then interview in Canada and pick up your immigrant visa there, and come back to the US on your immigrant visa. You would activate your new status when you enter the US on the CR-1 visa, and there would be no overlap with the J-1.

Thanks! This is the first I've heard of this option, and I'll look into it some more. However, wouldn't filing that application raise exactly the same issues of intent as filing an AOS from in-country? And wouldn't USCIS know about that application when I tried to enter?

[Harpa Timsah 13,258]

Anyone got some good ideas for honeymoon spots in the good old USA?

...

Thanks! This is the first I've heard of this option, and I'll look into it some more. However, wouldn't filing that application raise exactly the same issues of intent as filing an AOS from in-country? And wouldn't USCIS know about that application when I tried to enter?

Hawaii! Or.. US Virgin Islands... or Alaska.

As to your second question, USCIS would know that you had a spousal visa application pending, however, your intent on each entry would NOT be to immigrate... rather, you would have proof you intend to go home because that is where you get the visa The intent thing is not about long-term intention to stay in the US, or a vague plan to move to the US someday; rather, it's about each particular entry.

People mention that if you want to travel to the US while a CR-1 is pending, you should bring strong ties to your home country to prove that you will return home. You likely won't have strong ties, as you have been here so long. In that case, I am not sure what to do. Perhaps the pending application (reason to return to Canada) and your work in the US (legitimate reason to be in the US) would avoid the whole "strong ties" issue.

This is why the "intent" issue is a problematic for long-term US non-residents. I will note to you though, that intent itself is not a reason by itself to deny your AOS application. However, I know the main thing you want is to be able to secure your entry to the US, and not be stranded in Canada by capricious CBP officers. Good luck!

[hekot 1]

your intent on each entry would NOT be to immigrate... rather, you would have proof you intend to go home because that is where you get the visa

Wow, that is so far beyond the pale of common sense, that you have just convinced me that I am not going to be able to reason this one out, and should spend a little time with a good immigration lawyer.

However, I know the main thing you want is to be able to secure your entry to the US, and not be stranded in Canada by capricious CBP officers.

Indeed. Well, your replies have given me a good idea of what the lowest-risk path forward for me would be, should I choose to seek LPR. USVI here we come!

Thanks again,

-H

Edited December 2, 2010 by hekot

[juliava 80]

I also don't have any plans to stay in the US after the end of my J-1 status.

Keep in your mind that if you apply for AOS and if your AOS gets approved there are some specific requirements to maintain your LPR status. If you are not planning on staying in US you may lose this status.

[hekot 1]

Hi Juliava,

I should have said that I don't have plans either to stay or to leave. In my field I could easily end up working in another country.

Could you point me to those requirements?

Thanks,

Tom

[juliava 80]

This link should answer your question:

https://help.cbp.gov/app/answers/detail/a_id/820/related/1