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

Julia Roussinova
Schedule a Free Consultation with Top EB5 Visa AttorneysAs 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.

A Olusanjo Omoniyi
Schedule a Free Consultation with Top EB5 Visa AttorneysIt 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.

Daniel A Zeft
Schedule a Free Consultation with Top EB5 Visa AttorneysYour 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.

Abhinav Lohia
Schedule a Free Consultation with Top EB5 Visa AttorneysIn my opinion she needs to get a waiver or complete the two-year stay overseas.

Lynne Feldman
Schedule a Free Consultation with Top EB5 Visa AttorneysYou 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.

Charles Foster
Schedule a Free Consultation with Top EB5 Visa AttorneysIf 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.

Bernard P Wolfsdorf
Schedule a Free Consultation with Top EB5 Visa AttorneysYour 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.

Jinhee Wilde
Schedule a Free Consultation with Top EB5 Visa AttorneysAny 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.
DISCLAIMER: the information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program. Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public: do not include confidential information in your question.