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.
|