2 year home residency question

[trickyspark 0]

I was browsing around, looking at forms, preparing things months in advance so I could just mail the paperwork in when requested, mail my wife documentation before she needed it and what not.

Was looking at the DS-230 Part2. Noticed this line.

j. An alien who is a former exchange visitor who has not fulfilled the 2 year foreign residence requirement. YES__ NO__

My wife was an exchange visitor. She left the USA on January 7, 2005. I think she was in China on the 10th due to a flight cancellation. I have a few little questions.

First, I reckon I should have asked this already. Should she have notified someone, the government or something so they would know she is back and start taking time off her 2 years or does it just come off by being back?

Second, When that question is answered YES, which it will be...will they simply check and say, "oh, she still has some unserved time, let's put everything on hold right now until 1/10/2007"?

[aussiewench 9]

Not all exchange visitors are subject to the 2 yr HRR. Have a read HERE

Edited June 21, 2006 by aussiewench

[trickyspark 0]

She is from China and have already found out she is subject to this requirement.

[ryncarr 0]

trickyspark,

i believe that if she has not fulfilled her two year home residence requirement, she will not be eligible to adjust status/file I-485. She needs to either fulfill the requirement- in which case she may need to go back to China to finish the remaining months or she can file a waiver of this requirement.

i hope this helps.

[trickyspark 0]

If you mean what I think you mean it does help me alot. She intends to comply with her 2 year restriction. We follow everything to the letter. I was concerned with the effect it would have on the whole visa process, i.e, would it stop the procees dead in its tracks until January 8. If what you say is correct, then she could still get the visa (hopefully if she had a nice interviewer) and use the 6 months time she has to enter the USA with the visa to finish out any unserved time. That is of course, assuming by some miracle the government pulled its head out of its own butt long enough to get everything approved by January. I know that most likely won't happen.

I hope this is correct. Thanks so much for the reply, I believe that was the information I was seeking.

[aussiewench 9]

From Department of state http://travel.state.gov/visa/temp/types/types_1267.html

If the exchange visitor is subject to INA 212(e) requirement, he or she cannot change his or status to that of H, L, K, or immigrant lawful permanent resident (LPR) until he or she has returned to his/her home country for at least two-years or received a waiver of that requirement. Such waivers can be obtained under five separate bases: No Objection Statement, Exceptional Hardship or Persecution, Conrad Program, or Interested Government Agency. For information, see Waiver of the J Visa Two-Year Foreign Residence Requirement 212(e)

From reading the above links it doesnt look like a waiver can be filed unless the applicant is already in the US and is wanting to apply to adjust status. Hopefully someone that knows for sure will have some advice for you but it looks to me like she may have to wait until she has completed the 2 yr HRR before she will be issued a visa.

[trickyspark 0]

. Hopefully someone that knows for sure will have some advice for you but it looks to me like she may have to wait until she has completed the 2 yr HRR before she will be issued a visa.

Not looking for a waiver or anything. Just hoping to find out if they will continue processing the paperwork, I haven't even sent in the I-864 yet. So I am a few months from the question at hand. I just want to be prepared.

I am just worried when it comes down to the DS-230 Part2 question about the 2 years, if it is before January will they throw out my petition? Or maybe send me an RFE?

Basically, I want to know what happens if ....Mr. or Mrs or Ms. Visa type officer opens up the DS-230, looks it over and sees she has not finished 2 years. I didnt see an area to explain when the time would be up if you checked yes. Surely they would send out a request for more information? I don't forsee her having an interview before the time expires, I do forsee filling out the form before the time expires though, or else giving up on the whole deal and moving to China

I mean it would suck if say, by the time her interview rolls around, March, April, whenever by which time she would have been there 2 years...if they hadn't processed anymore past the point where they got the form, and saw the YES.

I'd call USCIS, but it's a different answer every phone call with them.

Regaurdless, I appreciate the replies.

[aussiewench 9]

. Hopefully someone that knows for sure will have some advice for you but it looks to me like she may have to wait until she has completed the 2 yr HRR before she will be issued a visa.

Not looking for a waiver or anything. Just hoping to find out if they will continue processing the paperwork, I haven't even sent in the I-864 yet. So I am a few months from the question at hand. I just want to be prepared.

I am just worried when it comes down to the DS-230 Part2 question about the 2 years, if it is before January will they throw out my petition? Or maybe send me an RFE?

Basically, I want to know what happens if ....Mr. or Mrs or Ms. Visa type officer opens up the DS-230, looks it over and sees she has not finished 2 years. I didnt see an area to explain when the time would be up if you checked yes. Surely they would send out a request for more information? I don't forsee her having an interview before the time expires, I do forsee filling out the form before the time expires though, or else giving up on the whole deal and moving to China

I mean it would suck if say, by the time her interview rolls around, March, April, whenever by which time she would have been there 2 years...if they hadn't processed anymore past the point where they got the form, and saw the YES.

I'd call USCIS, but it's a different answer every phone call with them.

Regaurdless, I appreciate the replies.

It seems from the link I included in my first post, that the consulate itself will not process the visa if she has not fulfilled the 2yr HRR. That is my understanding from reading it. As you are doing CR-1 and the DS-230 is submitted to NVC as opposed to K visa which submit the form at interview.....I am thinking that NVC will perhaps issue you with an RFE and perhaps even hold the case until the 2 yr home residency has been fulfilled. That is at a guess though.

Wishing you all the best.

[meauxna 15]

Wenchie, I don't think it actually comes to light until she gets to the Consulate. But I think the same as you---the way I've heard it, they will uncover the 2 year HRR at the interview and send her away, not issue a visa.

Sounds like this would be a good time for the OP to consult with an attorney who is well-familiar with J HRRs (and with China too, couldn't hurt).

[ariest 0]

She cannot adjust status or get visa before the requirement is fulfilled, so it means the interview should be after Jan.10, 2007 (not sure what to put on DS-230 though). The burden of proof is on your wife to show evidence that she fulfilled the requirement, she should have saved the flight ticket and passport with entry stamps, have some proof of residence and employment in China, if any etc. That's what I heard. However, immigrant visa process is quite long, so she perhaps won't have too much empty waiting time.