Clarity and Strength in Immigration Law

Green Cards for Postdoctoral Researcher Scholars: Easier to Obtain a Green Card on H-1B than on J-1?

Many postdocs working in the US as research scholars are here on the J-1 visa. The J-1 visa is a temporary visa classification, and it actually does not allow for dual intent. Dual intent refers to the idea that a foreign national can hold a particular temporary visa classification and have the permanent residence (green card application) underway at the same time. The dual intent doctrine applies to the H-1B, L-1, O, and P categories, and is also recognized for persons with E status. However, the doctrine of dual intent does not apply for persons holding J-1 status. It is technically possible to start the green card process while in J-1 status, but once the immigrant visa petition is filed (the I-140 petition if filing through the employment based process, such as the EB-1 Alien of Extraordinary Ability or EB-2 National Interest Waiver petition), you cannot extend the J-1 status, and you cannot travel outside the US and re-enter in J-1 status.

On the other hand, it is possible extend H-1B status or travel on the H-1B visa and file an EB-1 or NIW petition (or any other permanent residence filing for that matter). Because of that, it is sometimes said that it’s easier to file the EB-1 or NIW when you hold H-1B status, rather than J-1 status. This is partially true: it is easier in the sense that you can still extend your status and travel internationally while in H-1B status. On the other hand, the actual process of gathering the required evidence, assembling the petition, etc is not any harder or easier regardless of your immigration status.

A few other points for postdocs or research scholars considering permanent residence to consider:

  1. Sometimes J-1 visa holders are subject to a two year home residency requirement (212(e)). There are J-1/212(e) waivers available, but you should make sure that you have obtained the waiver or satisfied the requirement before filing the I-485 application for adjustment of status.
  2. Once you file the I-140 petition (or I-130 petition if filing through a family-based process), you will not be able to extend your J-1 status or travel and return to the US on the J-1 visa. Therefore you should carefully consider the timing of your filing. It’s certainly not impossible to file for a green card while you are in J-1 status, but it’s important to come up with a long-term strategy before filing.
  3. In some instances, a postdoc plans to ultimately change status to H-1B or O-1 status anyway, in the near or longer-term future. If that’s the case, it sometimes makes sense to wait until near the end of the J-1 status to submit the green card application.

The bottom line is that while there are benefits to filing for permanent residence while in H-1B status, it can be done while a person is in J-1 as well.  Sometimes the benefits of having a green card in hand sooner outweighs the challenges associated with the process. If you are interested in starting the permanent residence process, please email your updated resume to esumner@sumnerimmigration.com. We offer evaluations and consultations for professors and researchers interested in the EB-1 and NIW options. We look forward to hearing from you!  

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