Multiple Exchange Program (3+ J-1 Visas) & Cumulative Rule 212(e)

[bxmonkey 0]

Hello all,

I am currently petitioning for a K-1 visa with I-129F, however the applicant I am petitioning for (fiancee) has three (3) previous J-1 Visas from Honduras.

• First J-1 Visa annotated for Penn State University but it does NOT annotate "Subject to Section 212(E)" valid from 01/19/2010 to 01/14/2015.
• Second Visa annotated for Ohio Sate University but it does NOT annotate "Subject to Section 212(E)" valid from 03/18/2011 to 12/22/2011.
• Third J-1 Visa annotated for Ohio State University AND annotated with "Subject to Section 212(E)" valid from 01/23/2013 to 01/20/2014.

All were for training programs. Now I understand that the Ohio State visas override the one from Penn State. My question is the accumulation of the 2 year requirement. I am very concerned that the first and second J-1 Visas do not have the "Subject to Section 212(E)".

My I-129F petition has been approved with the NOA2 and she is about to schedule an interview with the U.S. Consulate in Tegucigalpa, Honduras. We've received notice that the consulate office has received our packet.

My fiancee kept all her old J-1 visas, DS-2019, and her old passport. It just so happens that her passport expired when I was petitioning for the K1 in February of 2014 so she has a new one. Is it dependent upon my fiancee to provide the burden of proof using old DS-2019's and old passport arrival/departure stamps that she has accumulated 2 years of residency in Honduras for 730 days per Rule 212(E) at the K-1 Visa Interview? Once she arrives in the U.S. the first time and then returns to Honduras (comparing the U.S. stamp and the Honduran stamp) is that when the time starts for the 2 year requirement? If she returns for another J-1 program, does that time restart or is the time delayed while she is in the U.S between arrival and departure stamps? I am confident she has accumulated 730 days starting from the date after returning from the first Exchange program.

We've gotten this far without applying for a waiver, but I am concerned that the interviewer will not "check the box" because we have not applied for a DS-3035 waiver. This was a major oversight on my part. In order to be cautious of the K1 denial or I-485 denial, I am going to do this right away on the "No Objection Statement" route. The Honduran embassy doesn't make it clear for this requirement other than I-612 for non-eligible applicants of Rule 212(A). I can assure you she meets the requirements of Rule 212(A) because our I-129F was approved.

Any help or opinions on this matter is greatly appreciated! I was thinking of getting an Advisory Opinion on this as well as apply for DS-3035 to prevent a major stop sign at I-485. I am thinking that if we provide a request for an Advisory Opinion that they will confirm that she has accumulated 730 days in Honduras.

Thank you!

[canadian_wife 1,785]

Her last J-1 (and yes, even with the new passport they are aware of old passport visas and requirements) did she have the 2HRR on it?

I think yes correct?

If yes, she is subject to the 2HRR, then the visa will not be issued unless the terms of the HRR have been met. When did she last leave the US?

good luck

[bxmonkey 0]

She last left the U.S. from the latest Exchange Program on 02/18/2014.

Her First Visa DS-2019 or "Certificate of Eligibility for Exchange Visitor (J-1) Status" does not have any check box marked (an error by the Honduran Consulate).

Her 2011 and 2013 DS-2019 do state that they are subject to Rule 212(E).

She went to the U.S. all with J-1 Visas:

• 01/28/2010 to 04/25/2010 (Blank 2010 DS-2019 not indicating Subject to Rule 212(E) or not)
• 03/26/2011 to 12/13/2011 (Subject to Rule 212(E) on 2011 DS-2019)
• 01/29/2013 to 02/18/2014 (Suject to Rule 212(E) on 2013 DS-2019)

So after being in the U.S. during those times, she came back and resided in Honduras:

• 04/25/10 to 03/26/2011 (335 days)
• 12/13/11 to 01/29/13 (413 days)
• 02/18/14 to Present (208 days on 09/14/14)

So if I add all up those days it's 956 days residing in Honduras after go to U.S. But if the Blank DS-2019 doesn't count, then it's only 612 days. The DS-2019 in 2010 should have the restrictions, but we cannot prove it at this point unless we make an Advisory Opinion on the matter.

If I add up the time she was in Honduras between 12/2011 and 01/2013 along with 02/2014 to the time of the interview (re-schedule for later January), she can meet the requirements of 2 year residency in a cumulative fashion, not a continuous fashion. If her first Visa state that is Rule 212(E) applies instead of being blank, she would be 2+ years back in Honduras. I'm not sure how to mediate this. Perhaps I can get an Advisory Opinion on the blank DS-2019 and count for the time she went back the Honduras from the states the very first time back in

[canadian_wife 1,785]

So her last J1 was the only one that had the 2 year HRR right?

good luck

[belinda63 2,981]

I would think the two years on the last one would start after it was finished. So starting Feb. 2014. You can't count time prior to the issuance of the visa towards a future visa.

[bxmonkey 0]

So her last J1 was the only one that had the 2 year HRR right?

good luck

Yes, that's correct. The last J1 explicitly says it. I believe the other visas were cancelled without prejudice.

[jan22 2,897]

Yes, that's correct. The last J1 explicitly says it. I believe the other visas were cancelled without prejudice.

That's the only one that really matters. The two years required stay in Honduras would begin when she returned from that visa -- sounds like, without a waiver, that's February 2016, sorry. As another poster pointed out, the time before she went on that visa doesn't matter (it would have counted for the previous visas if the requirement applied). Her visa will likely be denied under Section 221(g) -- a temporary denial until you supply the "no objection" waiver, which you will hopefully be able to get.

Good luck!

[canadian_wife 1,785]

The time spent in Honduras BEFORE her last J-1, the one with the 2year HRR, won't count.

Sorry, you're looking 2016 without a waiver

good luck

[bxmonkey 0]

Hello all,

I had a consultation with an immigration lawyer, and like everyone is saying, it's 2 years after the last exchange program. A different visa won't be issued if requirements are not met. I didn't have doubt in any answers above, but I thank you all for your help (jan22,belinda63, canadian_wife).

Some good news is that the Honduras embassy has requirements to request a No Objection Statement. There is one requirement that is not clear for me.

Duly authenticated Cooperation Agreement between the petitioner and an institution of the Government of Honduras or an NGO to conduct its operations in Honduras Copy. This agreement will aim to ensure that the benefits of the Program J-1 Visas to take effect in Honduras. The cooperation agreement must meet the following requirements:

1 Statement of Motives

2 Description of the cooperation will take place, including:

a) Duration of cooperation (not less than two years).

b) Work performed exactly the petitioner.

c) Number of hours per week will work the petitioner.

3 Expected results.

4 Procedure of continuous assessment of cooperation.

5 Signature and stamp of the authority of the government or NGOs which carry out the cooperation.

The immigration lawyer I met with did not have experience with this type of requirement for a No Objection Statement. If my fiance is back in Honduras with no cooperation agreement, then I would assume this does not apply. Her program was not funded by the Honduran government, but by a private employer (and the DS-2019 indicate that). At the bottom of the requests it says all information "shall" be provided. I'm wondering if it's enough to provide by NOA2 to the Honduran embassy from my fiance explaining the situation. I know it's all up to embassy to provide a No Objection Statement. I'm not sure if they will care what petitions the U.S. approves. If I can't find an immigration lawyer that has done Honduran waivers, I guess we have to do it ourselves.

Does anyone have any thoughts? I'm pretty sure we're going to have to do this on our own.