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  • Urgent please advice my case!

    I entered the US with J-1 visa without the 2 year rule written on my visa and my DS-2019 also says that i am not subject to the 2 year home residency requirement. I have recently applied for AOS marriage based.
    My question is which INS want a waiver for my situation ?

  • #2
    I entered the US with J-1 visa without the 2 year rule written on my visa and my DS-2019 also says that i am not subject to the 2 year home residency requirement. I have recently applied for AOS marriage based.
    My question is which INS want a waiver for my situation ?

    Comment


    • #3
      If you are not subject to the two-year foreign residency requirement, you do not need to apply for a waiver.

      Assuming that your application is meritorious and has been filed properly, you should be able to adjust status to lawful permanent residence without the need to file any further application with either the U.S.C.I.S. or the Department of State.

      Comment


      • #4
        Hi

        This is interesting and I haven't heard of this ... coz all J visas I guess have 2 yrs foreign residency requirement ... but if it says like you wrote here ...then I guess there shouldn't be a problem with AOS ...good luck ... Pasha

        Comment


        • #5
          No, not all J visa holders are subject to this requirement.

          Foreign au pairs are an example of J visa holders who are not subject to the two-year foreign residency requirement.

          In contrast, the most common group of J visa holders who are subject to the two-year foreign residency requirement seems to be foreign medical graduates.

          Whether you are - or are not- subject to the requirement will be obvious from your visa, because that information will be printed on it.

          Comment


          • #6
            Well Pasha Patel if the program is directly or indirectly supported by the foreign government there is 2 year residency requirement. The reason i asked is cause the sponsor i came from has no relation to the government and i have seen websites where lots of people experienced home residency requirement although they had no 2 year rule on their visa.
            I hope my case goes good and i won't encouter problems in the future!
            thanks again it's good to know people care in here.

            Comment


            • #7
              Dejavultd,

              Lazarus is right. You do not need a waiver. I know from experience.

              Comment


              • #8
                Thank you for sharing your thoughts and experience SERGIO

                Comment


                • #9
                  Hi
                  I was in a similar situation. It sounds like that you are not subject to the 2-year residency requirement. However, the only way to be sure is to request an advisory opinion from the department of state. Ultimatly, they have the last word in this kind of matter. Check http://travel.state.gov/j_faq.html#opinions. To request the advisory opinion, send a cover letter with copies of your passport, visa, I-94, copies of ALL DS-2019(formerly IAP-66) and a self addressed envelope to

                  U.S. Department of State
                  CA/VO/L/W, Visa Services
                  2401 E Street, NW, (SA-1)
                  Washington, DC 20522-0106

                  It will take around 6-8 weeks, and they'll send you in writing the "advisory opinion" if you are subject or not. This should satisfy the USCIS and settle the 2-year residency question once and for all.
                  Hope that helps,
                  Marcaurel

                  Comment


                  • #10
                    I have known cases where the USCIS makes decision about these kind of cases but i am not sure because it takes a long time to get a waiver or a decision like you said that takes 6-8 weeks.

                    Comment


                    • #11
                      Hi
                      True, the USCIS may make a decision about your AOS without the advisory opinion. However, if the question of 2-year residency requirement(212e) comes up during your AOS and the USCIS needs verification that you are not subject to 212e, it may delay your AOS. I could imagine that they'll either send you an RFE or the USCIS will contact the DOS directly. And remember, the more government agenices involved, the longer it takes and the higher the chance for a screw up ;-)

                      To make sure, I would request the advisory opinion (it'll only cost you the stamp and a couple of photocopies). Once you have it submitt it to the USCIS to include into your file (or bring it to the AOS interview). I don't know why the DOS takes so long for the advisory opinions (I guess it is not very high on their priority list ;-).
                      Anyway, requesting an advisory opinion regarding section 212e can't hurt, doesn't cost anything and may help you a bunch if it ever comes up.

                      Good luck,
                      Marcaurel

                      Comment


                      • #12
                        Final Determinations of Waiver Applications
                        Q. After a favorable recommendation for a waiver is made and transmitted by the Waiver Review Division to the BCIS what is the next step?

                        A. BCIS will make the final decision regarding the waiver and will contact the exchange visitor directly.

                        Q. Will I be notified by the Waiver Review Division that my application has been forwarded to BCIS?

                        A. Yes. You will receive a copy of the recommendation.

                        Q. If my application is denied, will I be notified of the reasons why?

                        A. Yes.

                        Comment


                        • #13
                          Hi

                          1) Your original question was if you need a waiver or not.
                          Answer: Depends.
                          YES, if you are subject to 212e. NO, if you are not subject to 212e.

                          2) The only way to definitively find out if you are subject to 212e is to ask the DOS (by requesting an advisory opinion). Which is easy to do. (I have done it myself; no need for an attorney)

                          3) Everything you said in your posts indicates that you are probably NOT subject to the 2-year rule (section 212e). Therefore, you don't need a waiver of any kind. (Don't worry about that, UNLESS the DOS determines that you are subject to 212e).

                          4) You said you already submitted the AOS application, which I don't think is a problem. Just send for the advisory opinion and submitt it to the USCIS whenever you receive it.

                          The reason why I think this is important is because on the I-485 is a question that asks: "Have you ever been a J nonimmigrant exchange visitor who was subject to the two-year foreign residence requirement and not yet complied with that requirement or obtained a waiver?".
                          To be eligible to adjust status you must be able to answer "NO" to this question.
                          There are several conditions to this question:
                          a) Have you ever been on a J1?: Yes
                          b) Are you subject to the 2-year residency requirement?: If you can answer this question with NO, you are home free. However, the USCIS officer that works on your file probably wants to see some evidence that you are not subject (like an advisory opinion stating that you are not subject to 212e).
                          c) "have not yet complied with that requirement"? This is insubstantial if you are not subject to begin with. If you were subject to 212e, the officer probably wants to see some eveidence that you stayed in your home country for 2 years.
                          d)"or obtained a waiver"? Again, if you were never subject to 212e, then this is insubstantial. However, if you were subject to 212e then the officer probably wants to see the waiver.

                          Therefore, I think it is prudent to request the advisory opinion (not the waiver), to establish your eligibility to adjust status.

                          All the best,
                          Marcaurel

                          Comment


                          • #14
                            Doesn't the DS-2019 not a proof that a person is not subject to 212e. I will follow your opinion if the officer request further proof that i am not subject to 212e.

                            Comment


                            • #15
                              Who is Subject to the Foreign Residence Requirement?
                              You are subject to the foreign residence requirement, if you are a (J-1 visa status) participant in the Exchange Vistor Program and:



                              Any part of your participation in the exchange program was paid for, directly or indirectly, by your government or the United States Government. Your program sponsor should have noted on your IAP-66 (Certificate of Eligibility for Exchange Visitor Status) if your program was paid for directly or indirectly by your government or the United States Government. You can also discuss this issue with officials from the Bureau of Consular Affairs.


                              You are from a country which has been designated by Bureau of Consular Affairs as requiring your skills (please see the Exchange Visitor Skill List for more information); or


                              You arrived in the United States on or after January 10, 1977 to obtain graduate medical education or training.

                              If you fall into one of the above categories, your dependent spouse and child are also subject to the foreign residence requirement.

                              Comment



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