J1 Waiver based on Hardship

[tai_91 1]

Hello,
My husband and I recently got married and I need answers regarding the waiver of the J1 visa.

I was a student, under J1 visa between 2014 and 2015, and I am still under the 212(e) rule. I still have 10 months left to stay in my home country (Brazil). I did a little research and I found that there are ways to get a waiver in this situation. Since I was funded by the Brazilian government, one option is to get the Non Objection Letter. I would like to avoid this option, since it takes months to them to reply me and I would like to remain in US, if possible. Also, we found a waiver based on Hardship, and it seems the best option for us. Right now, I am under a tourist visa and it is going to be expired on September, 21, 2017.

Do you think it is possible to me adjust my status and obtain a Green Card without having to go back to Brazil?
Also, since my visa will expired soon, and the waiver process takes months to be completed, can I stay in US meanwhile?
Thanks!

[DrEllaNJ 288]

You have to have an approved waiver before you can apply to adjust status. If you stay past your visa expiration date, you will be accumulating overstay. Overstay is typically forgiven for spouses of USC, but if they deny your waiver request, you'll have to go back to Brazil and that could be a problem.

Hardship waivers are hard to come by from what I understand, simple 'separation' is not considered enough. On what basis are you applying for a hardship waiver?

[tai_91 1]

We would try based on severe depression

[Coco8 1,042]

 

8 hours ago, tai_91 said:

Since I was funded by the Brazilian government, one option is to get the Non Objection Letter. I would like to avoid this option, since it takes months to them to reply me and I would like to remain in US, if possible.

The hardship waiver takes a long time too and it is expensive because you'd need to get a lawyer to put together a package. 

 

8 hours ago, tai_91 said:

Right now, I am under a tourist visa and it is going to be expired on September, 21, 2017.

Do you think it is possible to me adjust my status and obtain a Green Card without having to go back to Brazil?
Also, since my visa will expired soon, and the waiver process takes months to be completed, can I stay in US meanwhile?

 

You cannot stay in the US with a tourist visa and wait for the waiver. You are going to violate your visa. You cannot adjust without the waiver. The best course of action is to start the application for the spousal visa and go to Brazil while that is processing. That takes 12 months approx. You will be able to get it because by the time you have the consulate interview (last step), your 10 months will be over. In the meantime you can still visit the US with your tourist visa but make sure to "serve" the 10 months in Brazil. The spousal visa is also good because you'll get a green card when you enter the US.

 

7 hours ago, tai_91 said:

We would try based on severe depression

USCIS does not consider psychological issues seriously. There is no way you will get a waiver based on that. They will say your wife can move to Brazil for 10 months. You can search people who got the waiver: they were from countries at war, the US spouse had dependents in the US, they had stories that were going to make you cry. 

 

[tai_91 1]

Thank you so much for your help! I will be flying back to Brazil and my husband is going with me!