Can I Apply for a J1 Waiver Simultaneously with my Green Card Filing?

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This is a common question for many J1 Visa Holders. Some J1s have seen friends file simultaneously. Some J1s know of immigration attorneys that filed simultaneously for a colleague. Some J1s just want to know if it is even possible. Other J1s saw online (website, blog, or forum) that it was possible, but the explanation was confusing.

You may be stumbling upon this blog because you were searching for the answers to:

  • DS-3035 and I-485 Simultaneous Filing
  • I-612 Hardship Waiver and Adjustment of Status Simultaneous Filing
  • Can I be approved for a green card without an approved J1 Waiver?
  • NOS and AOS filed together

This blog post will explain further.

So, Can you apply for the NOS or Hardship Waiver and Green Card at the same time?

No, not really. But, the answer depends on what is considered a Green Card filing. A Green Card filing has many parts, and the “process” of a Green Card filing can cause confusion.

A Green Card filing is broken into two main parts:

Part 1: a petition (I-130 and I-140) and

Part 2: an application (I-485 or DS-260).

A Green Card Petition can be applied for DURING a J1 Waiver filing. For instance, if the Petitioner is based on marriage to a US Citizen, then you are eligible to start immediately after marriage. The J1 Restriction DOES NOT restrict petitions. But, it is important to note, a petition DOES NOT give any type of card. You do not get an employment card. You do not get a Green Card from an approved petition. The petition does not even allow lawful presence in the US. Instead, a petition establishes a relationship and makes a Green Card application filing “possible.” 

A Green Card APPLICATION cannot be applied for simultaneously with a J1 Waiver.

The reason that an Application (I-485 or DS-260) cannot be applied for concurrently with a waiver filing is due to Eligibility and Restriction. The J1 who is “subject” to the 212(e) Special Skills List is “required” to reside a minimum of 2 years in their home country AFTER the completion of the J1 Visa. A Green Card or Immigration is RESTRICTED until either:

(1) the residency requirement is “satisfied” OR

(2) a J1 Waiver is approved.

A friend did it, why can’t I do it too?

Well, this statement is very common, and there are three responses:

Response 1: The friend may have started the Green Card Petition, possibly for consular processing in Manila Philippines or some other country/US Embassy. So, the waiver and petition can be simultaneous.

Response 2: The friend may have filed things incorrectly. USCIS may have missed the restriction at the beginning, but it is always found out in the middle or the end of the process. An incorrect filing can be denied and deportation proceedings started. So, there are real risks and consequences.

Response 3: The friend may have “fudged” the timing truth and had the waiver before filing for a Green Card / Adjustment of Status. Additionally, not every J1 is subject to the J1 2-Year Home Residency Requirement, meaning they may never need a waiver, to begin with. So, the friend’s situation could have been completely different from your own.

If Adjusting Status without a previously approved J1 Waiver, what do the J1 Eligibility Questions on the I-485 mean?

On the I-485, USCIS asks the following at time of filing:

  1. Have you EVER been a J nonimmigrant exchange visitor who was subject to the two-year foreign residence requirement?
    • Have you complied with the foreign residence requirement?
    • Have you been granted a waiver or has Department of State issued a favorable waiver recommendation letter for you?

If you ARE SUBJECT, and you have not completed the Residency Requirement OR been favorably recommended for the waiver by the DOS, the J1 is ineligible AT TIME OF FILING the I-485.

USCIS does have some discretion and some things do fall through the cracks, which is why some I-485 Applicants start their Waiver and Green Card filing at the same time, which is why some J1s even receive an Employment Authorization Card (EAD Card) a few months later. HOWEVER, being ignorant of the law or ignorant of eligibility is no defense from:

  • Denial and Deportation
  • Denial and forcing a fine and consular processing
  • Denial and Permanent Bar

What does USCIS say about this topic?

In the USCIS Policy Manual, under the Chapter of Green Card / Adjustment of Status Eligibility, the Policy Manual recommends denial if the residency requirement was not satisfied or waived. The Policy Manual states:

Officers should first adjudicate the waiver request, as denial of the waiver necessarily renders the applicant ineligible for adjustment of status. Officers should not hold adjustment cases while waiting for either the applicant to submit a waiver application or the Department of State to make a recommendation on a waiver application and instead should deny the adjustment application for ineligibility based on the evidence of record.

Conclusion

It is NEVER recommended to file a J1 Waiver with a Green Card Application (I-485 or DS-260). A J1 is told about the restriction:

  • On every J1 Visa
  • In their DS-2019
  • By the sponsoring agency before coming to the US
  • By the sponsoring agency’s contract
  • By the sponsoring agency near the end of the J1 Program
  • By the sponsoring agency whenever a renewal/extension occurs
  • By the Foreign Government (e.g. EVP for the Philippines) before coming to the US

After being told so many times, a J1 cannot and should not “be ignorant” of the J1 Restriction and the 2-year Home Residency Requirement.

 

Related Blog Posts:

The J1 Exceptional Hardship Waiver – Form I-612: Brief Summary

J1 Waiver of 212(e) Special Skills list: Philippines and the Exceptional Hardship

Common J1 Teacher Questions: How to communicate with the J1 Sponsor? and what about the J1 Waiver?

Joint Bona Fide Documents: How to Start meeting the USCIS I-130 Evidence Requirement for a Marriage

Understanding Adjustment of Status Movements Around the Nation: Raleigh-Durham Processing

 

 

 

 

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