Over stay on J-I, any advice?

[ohara]

Hi,
I am a US citizen that married a man from another. He came to the US on a J-1 Visitor's Visa but did not return to his country after it expired. He has over stayed his visa for over two years. The unemployment in his country is 70% and in the US he can work. He files yearly US taxes, pays taxes on his check, has a drivers license, a social security number, and I earn enough to sponsor him. He is well educated with a BS degree. I would think that with our marriage he would get approved for a green card or something. Someone told him he would have to leave for 2 years before he can apply for a green card or adjustment. My son and I would be broken hearted without him for 2 years. If you have any advise please post.

Thank you,
Shelly

 

[LucyMO]

he needs to look in his passport, visa and the form DS-2019 (or IAP-66). If they say that he is a subject to 212(e) (sometimes the phrase is something like "a bearer to 212(e) or Home Residency Requirement), he will have to go home for two years before he can immigrate. See if any conditions below apply to his situation.

http://travel.state.gov/visa/temp/info/info_1288.html

"Exchange visitors may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act, as amended, for one or more of the following reasons:

a. They received funding from the United States Government, their own government, or an international organization in connection with their participation in the Exchange Visitor Program.

b. The education, training, or skill they are pursuing in this country appears on the Exchange Visitor Skills List (1997 Amendment) for their country.

c. They acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

Exchange visitors who are subject to, but do not wish to comply with, the two-year home country residence requirement, may apply for a waiver of that requirement under any one of the five applicable grounds provided by the United States immigration law."


Please read all the information in the link above.
He can apply for a waiver but it is unlikely that he will be able to finish the process because Department of State requires proof that the person is in the US legally and has been legally present all the time since his entrance on J-1.

Many J-1 people are in his situation and have to leave their families behind when they go home for two years. Broken hearts of the families are not a good enough reason to get a waiver. I am sorry if this sounds harsh, but so says the Department of State.

Now, your husband has another problem. Since he was in the States illegally for over a year, as soon as he leaves the States, he might be a subject to a ban on entering the US for 10 years. UNLESS he has a D/S stamp in his I-94, and he still has it, and he was never found to be out of status by the authorities. Then and only then, he didn't accumulate any illegal presence.

Please research the following topics very carefully:

illegal presence and "out of status" for holders of non-immigrant visas with D/S (duration of status) stamp in I-94. Ban for 3-10 years.

212(e) home residency requirement and the waiver for it.