Wed | Jan 17, 2018

Immigration Corner | I don't want to overstay

Published:Tuesday | May 9, 2017 | 12:00 AM

Dear Mrs Walker-Huntington,

I was a 'J1' student in the United States from 2013 to 2016. I went back home in September 2016 at the end of my programme. I have a US citizen girlfriend and we have been dating for years. I came to the States on my B2 visa to visit her in December 2016 to spend Christmas with her. I am supposed to go back home in June 2017. She didn't want me to leave and she married me, but now I am worried because I don't want to overstay my visa. Also, I am subject to the two-year rule. I am very worried because I heard that you can't adjust your status unless you return home for two years or apply for a waiver. What's the best thing to do?

- DN

Dear DN,

A J1 visa is a non-immigrant exchange visa that admits people to the US for a limited time to engage in training, studying, conducting research, etc, with specifically designated companies. Some visas, depending on who obtained the visa on behalf of the beneficiary and on what terms the programme was approved, have a two-year foreign residency requirement. This means that the holder of the J1 visa has to reside outside, the States for a period of two years before receiving certain immigration benefits, e.g., adjusting of status.

If you are subject to the two-year requirement and you want to change your status without fulfilling that requirement, you must obtain a waiver of the foreign residency requirement from the government of your home country. Additionally, the US State Department has to approve the application before you can submit it for adjustment of status to the United States Department of Homeland Security.


Extreme hardship


The waiver is either an extreme hardship waiver or one that shows that the J1 visa holder would be subjected to persecution if he/she returned home. The process is a long, tedious exercise that one should only put oneself through if one has no other alternative. It is understandable that couples want to be together during a marriage, but the process of the a J1 waiver should be completely understood before embarking on that journey.

If you have not already overstayed your stay in the US, you should consider returning to your country to wait out the two years in addition to reviewing your time already spent in the States with your attorney.

- 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.