Marriage green card at end of current visa with 2 Year residency requirement waiver in-process, question

Question

So I was just married, but my J1 Visa is ending in a few days. I know I have 30 days afterwards that I am allowed to take, to leave. Given the following additional information, which is the best course of action to take for applying for a greencard on the basis of marriage to a US Citizen?

But the situation is complicated by a 2-year home requirement from the J1-visa. I applied to waive this requirement a while back, but the processing is dragging on. I expect to receive the waiver, no problem, because I received no governmental funding. However, until I acquire the waiver, I think I am not supposed to apply for a greencard, since it is migratory.

If I apply now, I might be denied because I don't have the waiver yer. However, if I don't get the waiver soon, I might have to go back to my home country. If I go back to my home country, I am worried that I might be required to serve the 2-year residency requirement. Alternatively, I can try to wait for the waiver to process before applying for a greencard. But there is no guarantee that it will finish in time.

If I apply now and am rejected on the basis of having the 2-year home residency requirement, can I appeal later once the requirement is waived?

Answer 1

(I'll assume that you mean that your J1 program is finishing in a few days (not your visa; visa's expiration date doesn't matter as visas are only for entry), and thus you will remain in J1 status for 30 days after that.)

As for whether you can apply for Adjustment of Status (I-485) while a waiver for the 2-year home residency requirement is pending, there is some mixed information on this. Some people say that you need to have the waiver approved before you file I-485. Some people say that if you don't have a waiver when you file I-485, they will give you an RFE (request for evidence) to provide it within a certain time, and if you can't provide it, they will deny your I-485.

Note that as the spouse of a US citizen, you are in the Immediate Relative category, and you don't need to be in status when you apply for Adjustment of Status. You could have overstayed for years before you filed I-485; it wouldn't affect the I-485. So there is no need to hurry to file it before your status expires, although minimizing the time you are deportable (which you are after your status expires and before you file I-485) is good. Also, I am not sure whether being in the US and out of status will affect the adjudication of your waiver of the home residency requirement.