Website Q & A - January 4, 2008

Employment Green Card Possibility for a J-1 Exchange Visitor Overstay no Longer Subject to a Two-year Foreign Residence Requirement Who is Without 245(i) Protection

Dear Mr. Lee,

I came from Belgium three years ago under a J-1 visa to take part in a culinary institute program. I was subject to the two year residence requirement as an exchange visitor because I was originally from China, but I got that waived last year with assistance from the Chinese consulate in New York. My status expired on my DS-2019 form on June 25, 2006, and I have been working illegally ever since at different restaurants. I had experience before coming to the U.S. and a restaurant would like to sponsor me for a permanent green card as the chef. However, since I'm illegal and did not apply for my immigration before May 1, 2001, I know that I am not eligible for 245(i) and that if I leave the country to try to interview for my green card at a U.S. consulate overseas, I will be barred from returning to this country for 10 years. So far, I have managed not to get caught or have Immigration send me any letters. Should I just tell the restaurant not to apply for me and only hope for legalization from the next president?

Dear reader:

Section 245(i) allows most illegal immigrants to adjust status to permanent residence without leaving the U.S. upon payment of a fine amount, presently $1,000, if they applied for a labor certification or immigrant visa petition by April 30, 2001, and were present in the U.S. on December 21, 2000. You note that you did not establish eligibility for section 245(i) benefits. In your case, however, you can inform the restaurant to begin your sponsorship for permanent residence as you are not barred from returning to the country unless you received a formal denial from U.S.C.I.S. on your status or an order on your status from an immigration judge. The J-1 status is not date specific despite the ending date on the DS-2019 form. Time for purposes of the 3 and 10-year bars begins to accrue with the expiration of allowed time on date specific statuses, but not on ones marked duration of status (D/S) such as F-1 student and J-1 exchange visitor. The restaurant should be able to sponsor you for permanent residence and you should be able to interview for your residence status at a U.S. consulate overseas. Assuming that the labor certification is approved along with the I-140 preference petition and you have no unfavorable encounters with Immigration, you should be called for interview when the priority date clears (you will have to go overseas for some period of time prior to the interview for medical examination and to perhaps obtain needed documentation), and if you are otherwise found eligible for immigration, approved and allowed to return to the U.S. with an immigrant visa.


Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.