Is his J subject to the 2-year return home requirement?
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Your boyfriend has to leave the country prior to him accumulating 180 days of "unlawful presence" upon the expiration of his latest status (tourist), after which the 3 year bar to readmission will apply to him. He will need to leave the country and "join" you from the consulate overseas, once (hopefully your EB2 (NIW? PERM?) GC process will be approved. He cannot wait here. Since he already fell out of status here, there is no way USCIS will reinstate or agree to adjust his status with yours upon your marriage and case approval. You would have to marry him prior to filing the EB-2 I-140 Petition, where you will have to list him as your husband.
This is the plan. The fact that you are from 2 different nationalities makes no difference whatsoever. If you play it right, when you get your GC here, husband will get it there at a consulate as "following to join", after you.
Good luck! BTW I am very experienced when it comes to National Interest Waiver self-petitions, as well as PERM. Do not hesitate to call me at the office.
Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.
I agree with my colleagues.
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
Unfortunately, your boyfriend will have to leave the U.S. Even if his J visa does not carry the 2-year residence rule, given his situation, he cannot get his status changed or adjusted because he is currently out of status.
The above answer is intended only as general information and does not constitute legal advice.
Your boyfriend doesn't have many options. He can leave, hopefully before he triggers bars to his return, although it sounds as though he may already have done so. Or he can remain unlawfully present until you become a US citizen and adjust at that time. Not really a good option for him.