My girlfriend has a J-1 visa and she has the two years obligation on her visa. I have an H-1B visa and plan to apply for my green card in EB-2 category.  Is it possible to apply H-4 visa for her or include her in the future within EB-2? Is there any way to avoid the 2 years requirement?

Many J-1 exchange visitors are required to return to their country of last permanent residence before they can change to another temporary visa or adjust status to permanent residence (green card). This is called the two-year home country rule and it applies to  the J-1 exchange visitor who:

• Has professional skills needed in her home county based upon a skills list maintained by the Department of State,
• Received funding from the U.S. government or home country government to participate in the exchange program, or
• Is a physician engaged in graduate medical training in the United States.

If you marry your girlfriend and she is subject to this rule, she must either return to home country for two years or obtain a waiver of the rule (“J-1 waiver”) before she can change to H-4 visa or get a green card.

There are four types of J-1 waivers available.

J-1 Waiver Options

As you can see, eligibility for a J-1 waiver depends upon the exchange program and specific circumstances of each applicant.  In addition, there are certain exceptions to the home country rule for Canadian citizens and for certain types of visa applications, such as an investor visa or student visa.  Every situation is complex and different so further details are needed to determine whether your girlfriend qualifies for a waiver or may not need one at all.

To address your unique immigration situation, you are invited to contact our firm at [email protected], 214-672-2000.

The information provided in this article is intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.