Mon | Dec 5, 2016

Changing status for the children of green card holders

Published:Tuesday | December 16, 2014 | 12:00 AM
Dahila Walker Huntington
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Dahlia Walker-Huntington, United States

Greetings, I am 24 years old, the youngest child for my mother. My mom is a green card holder. I have a few questions I am hoping you can shed some light on for me.

1. I read online that if I go to the states on a non-immigrant visa, I can change my status by family petition. If I am on a J1 visa, is this possible?

2. My mom wants to file for me. How long would that process take? I am her last child.

Awaiting your response. thank you in advance.

- CG

Dear CG:

An immediate relative of a United States (US) citizen can file to change his status in the United States from a non-immigrant to an immigrant. This process requires that the non-immigrant enter the United States legally and be the spouse, parent, or minor child of a US citizen. This also applies even if the non-immigrant has overstayed his visa.

A J1 visa is a non-immigrant visa used for exchange visitors primarily to permit foreigners to come to the United States to train, conduct research, study, teach, or to engage in graduate medical training, to name a few. Some of the J1 visas are issued with the attachment of either the US government or the sending country having paid some or all of the financing for the programme. If that is the case, the recipient of the J1 visa will have a two-year foreign residency requirement, i.e., they are required to live outside of the United States for two years before being eligible to receive an immigrant visa or permanent residency.

Special waivers

The immigrant's two-year foreign residency requirement can be waived under a number of circumstances, among them receiving a no-objection letter from the immigrant's home country. Once the waiver is obtained, the immigrant can change his status with the requisite qualifying relative.

Your mother, as a green card holder, can file for her unmarried son or daughter. However, that process takes a number of years, and if you are in the United States, by the time a visa becomes available for you, you will be out of status. If your mother is going to file for you, please do not allow your status to expire with you in the United States.

If you are on a J1 visa and wish to obtain permanent residency, you should determine if you have a two-year foreign residency requirement, and if so, engage an immigration attorney to take you through the process.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal, and personal injury law in Florida. She is a mediator, arbitrator, and special magistrate in Broward County, Florida; and an adjunct professor at Miami Dade College's School of Criminal Justice. Email info@walkerhuntington.com.