What can they do (or have to do) for her to remain in the US?
My son is a citizen, she is on a J-1 au pair visa with a 2 year residency requirement. Also she said she was on a 90 extension already and must leave the first week of Sept. This has come up rather suddenly. Update: So... what I have found out is; Her visa says(has) annotation N0008806479. Bearer is not subject to section 212(E). Two year rule does not apply. P-4-06027 Her visa expired in March and she is on a 6 months extension thru the au pair service. She has a reservation(flight) to leave to South Africa (home) on the 6th of September. He has asked her to marry and wants to know whether they need to marry now and what to do in order for her to get or retain "legal" status, and what exactly that entails?? And should she stay in the US until she has legal status? (Which seems to be the general consensus) Thank you (in advance) for your help.
First have her look at the J-1 visa in her passport. It is probably annotated as either "subject" or "not subject" followed by a section of law. If it says not subjectt and your son is a US citizen, then great, go ahead and get married and go through the adjustment of status process being sure not to leave the country in the meantime, and being sure to consult with an attorney before you do anything to determine whether there may be other issues. If it says subject or if it doesn't say anything, you will need assistance to determine if she is subject and to get a waiver if she can. This is about the fact that most J visa holders are required to return home for 2 years before they're allowed to change or adjust status
This reply is intended only as general information and does not constitute legal advice in any particular case. This reply does not create an attorney/client relationship.
In general; if they get married he can sponsor her to adjust status. She will be forgiven for any time that she is out-of-status.
I agree with Ms. Mulder, assuming your son is a US Citizen, he can sponsor her for a "green card" and she can remain here. Ideally, she shoul file before she falls out of status, but she can obtain this benefit even if the J-1 expires. The process is fairly quick: 5-7 months from the date of filing. If your son is young and does not make too much money yet, he might need a financial co-sponsor.
This information is provided as a courtesy based upon the limited information provided in your post and does not constitute an attorney-client relationship.
While I agree with my colleagues, I would like to add that, absent a waiver, your son's fiancée will still be held to the two year home residency requirement. The green card will not be issued unless and until the residency requirement is met. Seek the counsel of an immigration attorney if you would like to discuss the possibility of a waiver. For my clients, I find some countries are more amenable than others to approve.
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1) the son's status.
2) whether the South African citizen is subject to the two year foreign residency requirement.
You should retain an experienced immigration lawyer to review all the facts, advise you, and handle the case. You can find one through http://www.ailalawyer.com.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.