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What are the requirements for a J-1 visa holder to apply for EB-5?

My wife is in the process of completing her study on a valid J-1 visa. I am on a valid J-2 visa and am thinking of filing a green card application through EB-5. J-1 students need to return to their home country for two years upon graduation unless they can obtain a waiver from their home country. If I apply for EB-5 and get conditional permanent residency before she finishes her two-year mandatory stay in our home country, can she just quit her job there and enter the country under EB-5 or must she get a waiver or complete the two-year stay before she can join me?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    As a J-2 derivative you are also subject to the requirement of what a J-1 spouse is. Your wife must either obtain a waiver or fulfill the requirement before you can apply for adjustment of status or an immigrant visa abroad. You can still file EB-5 because the current processing times are about two years. The EB-5 application (I-526) does not provide any status or work authorization in the U.S. and, once approved, it provides basis for adjustment of status or an immigrant visa to immigrate to the U.S.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    Your wife must complete the two-year stay or obtain a waiver before she can apply for an immigrant visa. Also, you must obtain a waiver or complete the two-year stay in your home country before you can apply for an immigrant visa or apply to adjust status to permanent residency in the United States.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It is advisable to seek a waiver of her J-1 obligations. The J-1 issue will be thoroughly vetted and addressed, as it may be questioned by the USCIS. Whether she can quit her job depends on her employment contract. Unless it is legally or properly done, her EB-5 qualification may be affected and perhaps delayed in the resolution of her case by the USCIS. Advisably, consult an immigration attorney to review all relevant documents.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You both will need her to obtain a waiver request, a no-objection letter from your home country unless she is a physician before either can adjust status to permanent residency. The two-year requirement also applies to the J-2.

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    Abhinav Lohia

    Immigration Attorney
    Answered on

    In my opinion she needs to get a waiver or complete the two-year stay overseas.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Any J visa holders that have home country presence requirement must obtain a waiver before filing any other application. Your J-2 follows her J-1 and cannot be separated. If she gets the waiver, then you also get the waiver, but if she does not, then you cannot apply for a waiver yourself.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Your wife must get a waiver or return to her country of residence for two years, after which she can immigrate as a following to join spouse.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you or your wife are subject to the 2-year foreign residency requirement based upon having held a J-1 nonimmigrant visa, either of you is free at any time to file an EB-5 Petition on Form I-526. However, unless you were able to obtain a waiver, which is very difficult, each party that is subject to the 2-year foreign residency requirement would have to spend full 2 years in your home country before you could apply for an EB-5 immigrant visa at the appropriate American Consulate.

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