I agree with other counsel that applying for asylum while on a J-1 visa holder is the same as applying for asylum while on any other visa (and that you should consult with an experienced asylum attorney).
Can a J-1 visa holder apply for another status?
When U.S. immigration law allows J-1 visa holders to continue on and apply for another status in the U.S. regardless of the two-year home residencey requirement. Please answer a few questions to help us match you with attorneys in your area.
What is the foreign residence requirement for a J1 visa?
The U.S. government has designated your home country as having few people with the skill set and expertise in your particular occupation or field Typically, J1 visa holders are told upon applying for their visa whether or not they are subject to the two-year foreign residence requirement.
How long can you stay in the US on a J-1?
The two-year period need not be an unbroken stretch of time; an aggregation of two years in your home country can also suffice. This requirement causes frustration for many J-1 visitors who, while in the U.S., receive a job offer, marry a U.S. citizen, or otherwise become technically eligible for a visa or green card.
Can a person apply for asylum in the United States?
If you are eligible for asylum you may be permitted to remain in the United States. To apply for asylum, file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States.
Who qualifies for asylum in the United States?
Who Is Eligible to Apply for Asylum? You may apply for asylum if you are at a port of entry or in the United States. You may apply for asylum regardless of your immigration status and within 1 year of your arrival to the United States. Extraordinary circumstances relating to your delay in filing.
How can I stay in USA after J1 visa?
Visitors can transition from the J-1 visa to permanent residence in two different ways. They can also decide whether or not they want to take advantage of consular processing and make a status adjustment. An adjustment of status requires the joint cooperation of the visitor's employer and the visitor.
Can a J1 visa holder change status to green card?
Is it Possible to Transfer from J1 to Green Card Status in the U.S.? Yes, transitioning from a J1 visa to green card status is possible, but not all J1 visa holders will be eligible for a green card. There are a number of problems with attempting to transition from a J1 to a green card.
What type of visa is for asylum?
Filing for Permanent Residence (Green Card) You may apply for a Green Card 1 year after being granted asylum. To apply for a Green Card, file a Form I-485, Application to Register Permanent Residence or to Adjust Status.
Can I convert J1 visa to H1B?
To transfer your J1 visa to an H1B visa: You must obtain a job offer from a US employer before you can apply. You must go through the H1B visa application process.
What is the 2 year rule for J-1?
Overview. Some exchange visitors with J-1 visas are subject to a two-year home-country physical presence requirement. It requires you to return home for at least two years after your exchange visitor program. This requirement is part of U.S. law, in the Immigration and Nationality Act, Section 212(e).
How long can I stay in US after J-1 visa expires?
a 30 dayGrace Period: J-1 Visa Holders have a 30 day grace period after the end date on their DS-2019 Form. The Grace Period is a benefit of the J-1 status to allow J-1 visa holders time after their status to remain in the US.
Can I marry a U.S. citizen on a J-1 visa?
A J-1 Visa holder marrying a U.S. citizen is not uncommon, but you will need to prove your bona fide marriage to United States Citizenship and Immigration Services (USCIS). One of the main reasons why you may need to change your J-1 status is to marry a United States citizen or permanent resident.
How Long Can J-1 visa stay in the US?
Length of Time Business and Industrial Trainees Can Stay in the U.S. on a J-1 Visa. Business and industrial trainees may be issued J-1 visas for a maximum of 18 months. (See 22 C.F.R. § 62.22(k).)
Is it easy to get asylum in USA?
Whether you will be granted asylum in the U.S. depends on many factors, and your chances of obtaining asylum are difficult to predict.
How long does it take to get asylum in USA?
Although you should receive a decision within two to three months, there have been reported wait times of six months to a year (as of early 2021). The asylum officer will either grant your asylum application or refer your application to the immigration court.
How long does asylum status last?
Refugees and asylees are employment eligible incident to their status and are authorized to work indefinitely because their immigration status does not expire.
How long can I stay in the US with a J-1 visa?
Length of Time Business and Industrial Trainees Can Stay in the U.S. on a J-1 Visa. Business and industrial trainees may be issued J-1 visas for a maximum of 18 months. (See 22 C.F.R. § 62.22(k).)
How can I change my J-1 visa to work visa?
How to Apply for a J1 to H1B Change of StatusFind an H1B Sponsor. Your H1B visa is dependent on a job offer from an employer who is willing to be your sponsor. ... Employer Submits Labor Conditions Approval (LCA) ... Employer Submits Form I-129. ... Applicant Completes Application at a US Embassy or Consulate.
Can I apply for tourist visa after J-1 visa?
Application process In order to change your J-1 status to B-1 or B-2 status (Visitor for Business or Pleasure), you have to file Form I-539, Application to Extend/Change Nonimmigrant Status, and submit all necessary documents.
Can I convert my J-1 visa to F-1?
Applications to change to F-1/J-1 status may be submitted to the USCIS up to six months in advance of the start date on Form I-20/DS-2019, but may not be approved by the USCIS until 120 days or less before the start date.
How long do you have to apply for asylum?
As you may already know, there is a 1 year deadline to apply for asylum after you've entered the country. This is usually strictly enforced and most cases get thrown out because they applied after 1 year of entering. Rarely a student visa can get around this rule if it is for 'duration of stay' but I would not risk it. If you can travel to your country safely and come back, I would apply after entering to be on the safe side.
What happens if you get denied asylum?
If your asylum is denied nothing happens to your J-1 status (as long as you maintain it). You can continue on J-1. However depending on why your case is denied (do they suspect fraud etc) it may affect future US visas you apply for.
What are the exceptions to the one year rule?
Question 1 - There are two exceptions to the one year rule, "changed circumstances" and "extraordinary circumstances". The first exception involves things that have happened since you have been in the US that materially affect your eligibility for asylum, like changes in the situation in your home country. Based on what you wrote, you may qualify for the exception, depending on when things changed in your country and if those changes are the reason you are applying for asylum. But you must still file in a reasonable time after those changed circumstances. Extraordinary circumstances are things that affect your ability to apply for asylum and being in lawful status is specifically listed as an extraordinary circumstance. (iv) The a pplicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application. It would appear that qualify for both types of exceptions.
Can you get a waiver of residency?
Question 2 - Waivers of two year residency are difficult to obtain. You will have to show hardship that is almost as bad as the persecution that you fear if you return to your country. So the asylum application is probably your best bet.
Do you need a waiver for J-1 to apply for asylum?
You need not get a waiver for J-1 to apply for asylum.
How to get a waiver of residency?
Unless you are a foreign medical graduate, the easiest way to obtain a waiver may be to have your home government consent to it through a "no objection letter." In this letter, your government would assert that it does not have a problem with your staying in the U.S. to apply for permanent residence (a green card) – even if it helped finance your exchange program participation. Contact your home country's embassy in Washington, DC, to request such a letter. Be forewarned, however: A no-objection letter may not be enough by itself to secure you a waiver of the two-year home residence requirement. This is particularly true if you accepted scholarship funding to come to the U.S. in J-1 status.
What to do if you don't believe you are subject to Section 212 E?
Consult with an immigration lawyer if you you don't believe you fall into one of these categories but nevertheless received a "Subject to Section 212 (e)" notation in your entry visa.
How long do you have to work for a medical waiver?
Request for your services as physician by a state department of health. If you are a foreign medical graduate who has an offer of full-time employment at a health care facility in an area that has been designated as having a shortage of doctors, and you agree to begin working there within 90 days of receiving the waiver and to continue working there full-time for at least three years, you may be granted a waiver.
Can foreign medical graduates get waivers?
government, and that agency decides that your continued stay is vital to one of its programs, it may support your request for a waiver. Foreign medical graduates may qualify for an interested government agency waiver through the U.S. Department of Agriculture or the Department of Health and Human Services.
How long after filing an I-765 can I apply for asylum?
You may apply for employment authorization 365 calendar days after you file your complete asylum application.
How to check asylum status?
If you have an asylum application pending with us, you can check your case status online. All you need is the receipt number that we mailed you after you filed your application. Start here: uscis.gov/casestatus.
What is the CASA injunction?
This preliminary injunction provides limited injunctive relief to members of two organizations, CASA de Maryland (CASA) and the Asylum Seeker Advocacy Project (ASAP), in the application of the Removal of 30-day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications Rule and the Asylum Application, Interview, and Employment Authorization for Applicants Rule to Form I-589s and Form I-765s filed by asylum applicants who are also members of CASA or ASAP.
How long do you have to file for asylum for a child?
To include your child on your application, the child must be under 21 and unmarried. You must file the petition within two years of being granted asylum unless there are humanitarian reasons to excuse this deadline. There is no fee to file this petition.
How long does it take to get asylum after a judge denies it?
For in-status applicants, on the date an asylum officer denies your asylum application; 30 days after an immigration judge denies your asylum application, unless you file a timely appeal to the Board of Immigration Appeals; or. On the date the Board of Immigration Appeals affirms or upholds a denial.
What is the form I-589?
Nationality. Membership in a particular social group. Political opinion. If you are eligible for asylum you may be permitted to remain in the United States. To apply for asylum, file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States.
When was the USCIS rescinded?
ALERT: On Aug. 2, 2019, USCIS rescinded the May 31, 2019, memorandum, “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children,” when the U.S. District Court for the District of Maryland in the case of J.O.P. v. U.S. Dept. of Homeland Security et al., Civil Action 8:19-cv-01944, issued a temporary restraining order enjoining us from applying it. On Dec. 21, 2020, the District Court certified a class and entered an Amended Preliminary Injunction in the case of J.O.P (PDF, 57.46 KB).
How long does a J1 visa last?
Typically, J1 visa holders are told upon applying for their visa whether or not they are subject to the two-year foreign residence requirement. This information will be listed on your Form DS-2019, where the consular officer should indicate your status relevant to the two-year rule. Your visa stamp should also contain information on whether or not this restriction applies to you.
How to get a J1 waiver?
Submit your immigrant petition together with your J1 waiver, along with proof that you did not initially have immigrant intent upon obtaining your J1 visa. Submit your J1 waiver first, wait until it is approved, and then submit your immigrant petition. Submit your immigration petition first, wait until it is approved, then submit your J1 waiver. ...
How many options are there for a J1 waiver?
Once you have obtained a J1 waiver, you have three different options for submitting the waiver. Which is the best option for you will depend on your particular immigration status, whether or not you are subject to the two-year foreign residence rule, and if you can prove a lack of immigrant intent. Consulting an immigration attorney can help you determine which of the three following options gives you the best chance of success:
Can a visa sponsor revoke a J1 visa?
Another obstacle that may arise in obtaining a J1 waiver is that your visa sponsor may revoke your J1 visa once you petition for a green card. This goes back to the issue of immigrant intent. A J1 visa is a nonimmigrant visa, and visa sponsors don’t want a reputation with the U.S. government as a J1 program that noncitizens use to transition to green card status. Having an immigration attorney with expertise in demonstrating a lack of immigrant intent may be helpful.
Can a J1 visa be changed to a nonimmigrant visa?
Many J1 visa holders seeking permanent resident status also first change their visa status to a nonimmigrant visa with dual intent, like an H-1B. This lets them avoid potentially violating the terms of their J1 visa and the problem of immigrant intent.
What do you need to transition from J1 to green card?
If you seek to transition from J1 to green card, you will have to show that your desire for permanent residence arose from unexpected changes in your personal circumstances. This can include, for instance, if you have married a U.S. citizen.
Can you get a J1 waiver if you are returning to your home country?
You can demonstrate to the U.S. government that returning to your home country you will incur significant financial hardship. If a specific agency of the U.S. federal government sponsors your permanent residence by requesting your presence in the U.S. Another obstacle that may arise in obtaining a J1 waiver is that your visa sponsor may revoke your ...
What is a J-1 visa?
The J-1 visa status permits a qualified nonimmigrant alien, i.e., an alien who is not a lawful permanent resident (also known as a “green card holder”), to temporarily reside in the United States to teach, study, observe, conduct research, consult, demonstrate special skills or receive on-the-job training for periods ranging from a few weeks to several years at colleges and universities, hospitals, research institutions, as well as the private sector.
What happens if a J-1 alien meets the substance test?
If a J-1 alien meets the Substantial Presence Test, he or she should be aware of the rules for determining the official starting and ending date of their period of residency in the United States. For details on these rules, refer to Residency Starting and Ending Dates.
What are the tax rules for nonresident aliens?
For tax purposes, there are two types of aliens: resident and nonresident aliens. Resident aliens are taxed in the same manner as U.S. citizens on their worldwide income, and nonresident aliens (with certain narrowly defined exceptions) are taxed only on income which is derived from sources within the United States and/or income that is effectively connected with a U.S. trade or business.
What to do if Social Security tax is withheld?
What to do if the tax is withheld: If a J-1 alien falls into the category of employees who are exempt from Social Security and Medicare tax, he or she may discuss with his or her employer to stop withholding and refund amounts that were already withheld. Employees that are unable to obtain a refund from their employer may file Form 843, Claim for Refund and Request for Abatement and Form 8316, Information Regarding Request for Refund of Social Security Tax Erroneously Withheld on Wages Received by a Nonresident Alien on an F, J, or M Type Visa PDF, to obtain a refund.
What is dual status alien?
A dual-status alien is an individual who changes residency status during the tax year from nonresident alien to resident alien or resident alien to nonresident alien. J-1 aliens who are “dual-status aliens” must file a special income tax return. For more information, refer to Taxation of Dual-Status Aliens.
What is a student visa?
The term “student” refers to any alien individual (and that individual’s immediate family) who is admitted temporarily to the United States on an “F” or “M” visa or as a student on a "J” or "Q" visa, and who substantially complies with the requirements of that visa. The term “teacher or trainee” refers to any individual ...
What form do you report wages on for a J-1?
Wages paid to a J-1 alien are reported on Form 941, Employer's Quarterly Federal Tax Return, and Form W-2, Wage and Tax Statement, in the usual manner. However, if the J-1 alien is claiming treaty benefits with respect to wages, as a resident of a country with which the United States has an income tax treaty in force, such wages are reported on Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, and Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding.
What happens if your permanent residence status expires?
If your permanent residence status has in fact expired, you are no longer eligible for federal student aid.
What is a battered immigrant qualified alien?
You are a “ battered immigrant-qualified alien ” who is a victim of abuse by your citizen or permanent resident spouse, or you are the child of a person designated as such under the Violence Against Women Act (VAWA).*
Can a non-citizen get federal student aid?
Many non-U.S. citizens qualify for federal student aid. Don’t assume you can’ t get aid just because you’re not a citizen. The most common category of eligible noncitizen is that of permanent resident (someone with a “green card”), but there are other categories as well. I am a non-U.S. citizen.
Does your parents citizenship affect your FAFSA?
No, your parents’ citizenship or immigration status does not affect your eligibility for federal student aid. In fact, the Free Application for Federal Student Aid (FAFSA ®) form doesn’t even ask about your parents’ status. Learn about filling out the FAFSA form.
Can I apply for FAFSA as a non-citizen?
To begin your FAFSA form, you must enter your Social Security number. While completing the FAFSA form, you must answer the “Are you a U.S. citizen?” question as “No, I am not a citizen or eligible noncitizen.” After submitting your FAFSA form, you should check with your college’s financial aid office to see what types of financial aid you may be eligible to receive.
What is an asylum only proceeding?
Accordingly, aliens seeking admission under the VWP and aliens ordered removed who were admitted under the VWP are only eligible for what is called an “asylum-only proceeding.” In an asylum-only proceeding, the immigration judge will only consider the alien's applications for asylum and withholding of removal (applications for asylum are automatically considered for withholding of removal and protection under the Convention Against Torture). The alien is not permitted to otherwise contest his or her removability or apply for any other forms of relief from removal. Furthermore, 8 C.F.R. 208.2 (c) (1) provides immigration judges with “exclusive jurisdiction” over such asylum applications.
Who has jurisdiction over asylum applications filed by those admitted under the VWP?
The AAPM states that the USCIS asylum office has jurisdiction over asylum applications filed by those admitted under the VWP in the following circumstances (quoted with modifications):
How to remove an alien from the VWP?
Under 8 C.F.R. 217.4 (a), an alien who presents him or herself for admission under the VWP will be removed if it is determined that he or she is inadmissible. In general, the alien will be summarily removed without a hearing before an immigration judge. However, if the alien applies for asylum after being refused admission under the VWP, alien will be issued a Form I-863, Notice of Referral to Immigration Judge. After the issuance of the Form I-863, the alien has an opportunity to present his or her claim for asylum to an immigration judge in accord with 8 C.F.R. 208.2 (c) (1) and (2).
What is VWP in immigration?
The Board of Immigration Appeals (BIA) and several courts have held that the VWP provisions apply to individuals who seek admission based on a fraudulent passport. In Matter of Kanagasundram, 22 I&N Dec. 963 (BIA 1999) [ PDF version ], the Board held that an alien who has been refused admission under the then Visa Waiver Pilot Program must be issued a Form I-863 if he or she is refused admission. The Board held that 8 C.F.R. 217.4 “specifically encompasses individuals who present fraudulent and counterfeit travel documents from such countries.” Id. at 965. In Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010) [ PDF version ], the United States Court of Appeals for the Second Circuit held that an alien who is denied admission under the VWP because he or she used a fake passport may only contest removal on the basis of an application for asylum.
Does the BIA have jurisdiction in asylum only proceedings?
In Matter of D-M-C-P-, 26 I&N Dec. 644 (BIA 2015) [ PDF version ], the Board held that immigration judges and the BIA do not have jurisdiction in asylum-only proceedings to consider whether the alien was improperly placed in such proceedings based on a referral under the VWP. However, in Handa v. Clark, 401 F.3d 1129, 1133 (9th Cir. 2005) [ PDF version ], the United States Court of Appeals for the Ninth Circuit held that an alien could raise claims that the government improperly applied the VWP procedures.
Can an alien who has been admitted to the VWP contest removal?
The INA states definitively that an alien applying for admission under the VWP or an alien who has been admitted under the VWP may not contest removal on any basis except by filing an application for asylum. In the following sub-sections, we will examine how the statute is interpreted through agency regulations and guidance.
Can an alien be bonded under VWP?
In Matter of A-W-, 25 I&N Dec. 45 (BIA 2009) [ PDF version ], the Board held that an alien admitted under the VWP is not entitled to a bond hearing from an immigration judge. Instead, the immigration judge may only consider the asylum claim.
What form do I need to file for J-1 waiver?
You will need to file Form I-612, Application for Waiver for the Foreign Residence Requirement which is required to obtain a J-1 waiver under persecution. You can mail the petition using any of the following alternatives:
How long does it take to get a waiver from USCIS?
The estimated processing time is about three to four months with exceptions depending on the case. When the Waiver Review Division completes the waiver recommendation review process under the Persecution category, they’ll forward their favorable or unfavorable recommendation to USCIS. The applicant will also receive a copy of the recommendation to the address listed on the online form DS-3035. If the USCIS finds that the applicant is liable to persecution, the USCIS will notify the applicant of approval or denial at the listed address.
Can a J-1 visa be terminated?
Yes. The same restrictions on J-1 visa holders apply to the individuals who entered the U.S. as J-2 dependents. Once the J-1 holder’s visa is terminated, then the J-2 visa of any dependents will also be terminated. Also, if the J-1 persecution waiver request is approved, the J-1 holder dependents will also benefit from the waiver.
Can I get a waiver before I-612?
The U.S. Department of State Waiver Application has the option of either being filed before the applicant submits the I-612 form to the USCIS or after the USCIS has given its decision. Though it’s important to note that if the applicant submits the Waiver Application to the Department of State prior to the submission of the I-612, the Department of State will not refund the fee if the USCIS does not find a case of persecution.
Does USCIS accept J-1 waivers?
The USCIS does accept appeals for denials on the basis of J-1 waiver persecution.
Can a J-1 visa be denied to a dependent?
Normally, the J-1 visa holder is the one that can request a waiver, and the result of his or her request (approval or denial) applies to the dependents (J-2 visa holder) too. However, in the following circumstances, the U.S. Waiver Review Division (WRD) will consider the J-2 waiver application on a case-by-case basis:
Can you get a J-1 waiver if you are persecuted?
In some cases, persecution or the fear of it might not be from the government, but rather from certain groups of individuals in your home country. If the reason for the persecution is due to your political beliefs , religious belief s, or race, there is a greater chance that your J-1 persecution waiver application will be approved.
