Legal Question in Immigration Law in California

Hi, I am an American citizen. I met my girl friend 2 yrs ago while she was in the U.S. on a J-1 visa that is subject to sec. 212(e). Since then, when her J-1 expired, she returned home (S.Korea) for 9 months. She is now back in the U.S. on her passport with a 90 day visa waiver. She has been here for approx. 75 days and we want to Marry. According to my research, in order for her to stay and change status -regardless of marriage- she has to spend 15 more months in her home country, or apply for and receive a 212(e) waiver (No Objection Statement) via the Korean Consulate. Are these our only choices? (the no objection statement seems to be the only waiver that applies to our situation) 15 months in Korea? Waiver? Can she stay here during the process ?


Asked on 7/26/09, 9:18 pm

1 Answer from Attorneys
Larry L. Doan Law Office of Larry L. Doan

On a visa waiver, she cannot change status to any nonimmigrant class (like J-1, F-1, etc.) but can ADJUST her status to permanent residence through marriage with you. If she ultimately doesn't get the No Objection Statement approved and by then it's past her 90 days on the Visa Waiver, she will accumulate unlawful presence and it will hurt her in applying for something in the future. If she gets it approved, then she can file the adjustment of status and the unlawful presence is waived since she's an immediate relative. So, she has to take her chance on staying here or not. I recommend going back to South Korea.

Larry Liem Doan

www.GuruImmigration.com

http://guruimmigration.wordpress.com (blog)

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Answered on 7/27/09, 1:00 am


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