J-1 Home Residency Requirement, but currently on F-1 visa & married to a US citizen

[bubby 0]

Hi everyone,

I am seeking some advice on how to handle a home residency requirement (HRR), if I am currently in the US under F-1, I have 4 months left on the HRR and I am married to a US citizen. I entered the US on J-1 in and remained for almost four years. I was subject to HRR because I received government funding. At that point it didn't matter because I intended on returning to my home country. Later I decided to attend grad school so I applied for an F-1. When I graduated I applied for work authorization and it was granted based on my current F-1 status, even though I still had 4 months and 3 weeks to fulfill the prior HRR. Last year I met my wife and we got married recently. Now I am getting ready to file for AOS, but I am not sure how what to do with the HRR. It seems there are three options:

A. File AOS as F-1 student hoping the USCIS will ignore the HRR just like they did with my work authorization B) . There's no clear indication of what someone in my case should do. I wonder whether it would hurt to apply anyway.

B. Return to my home country and fulfill the remaining time before filing my forms. This would cause so much trouble to my wife so it would be a very last resort. Plus a four month holiday and flight tickets would be a big toll on our finances.

C. Apply for a waiver. I could apply for a No Objection Statement, but there would be no grounds for it besides the fact that I almost fulfilled the HRR commitment. From what I know waivers are not normally granted for students who had government funding. If the waiver gets rejected does that mean I can still attempt to apply for AOS?

I have thought about consulting with an immigration attorney, but before doing so I am trying to see if anybody had a similar experience. I can't find any cases of J-1 students transitioning to an F-1 and then marrying to a US citizen while under work authorization.

[Shelly&Jay 0]

I would consult an immigration attorney.

Good luck!

Shelly

[KIMCORENE 0]

Hi everyone,

I am seeking some advice on how to handle a home residency requirement (HRR), if I am currently in the US under F-1, I have 4 months left on the HRR and I am married to a US citizen. I entered the US on J-1 in and remained for almost four years. I was subject to HRR because I received government funding. At that point it didn't matter because I intended on returning to my home country. Later I decided to attend grad school so I applied for an F-1. When I graduated I applied for work authorization and it was granted based on my current F-1 status, even though I still had 4 months and 3 weeks to fulfill the prior HRR. Last year I met my wife and we got married recently. Now I am getting ready to file for AOS, but I am not sure how what to do with the HRR. It seems there are three options:

A. File AOS as F-1 student hoping the USCIS will ignore the HRR just like they did with my work authorization B) . There's no clear indication of what someone in my case should do. I wonder whether it would hurt to apply anyway.

This may not work- your previous J-1 status most likely had no bearing on your eligibility to apply for work authorization, so I wouldn't go so far as to say it was "ignored" by USCIS. Misrepresentation on your AOS papers would have serious consequences, as remeber they will be doing background checks, and the 2 yr HRR will come up. The information on the instructions for the I-485 clearly state that if you have not completed/waived the requirement, you are ineligible to apply to adjust status.

B. Return to my home country and fulfill the remaining time before filing my forms. This would cause so much trouble to my wife so it would be a very last resort. Plus a four month holiday and flight tickets would be a big toll on our finances.

C. Apply for a waiver. I could apply for a No Objection Statement, but there would be no grounds for it besides the fact that I almost fulfilled the HRR commitment. From what I know waivers are not normally granted for students who had government funding. If the waiver gets rejected does that mean I can still attempt to apply for AOS?

If you should apply for the waiver and it is rejected, you still would be ineligible to apply for AOS- not because you got rejected, but because you would still have the requirement. Have you considered applying based on Hardship to your USC spouse?

I have thought about consulting with an immigration attorney, but before doing so I am trying to see if anybody had a similar experience. I can't find any cases of J-1 students transitioning to an F-1 and then marrying to a US citizen while under work authorization.

It doesn't matter which visa you currently hold, the requirement can only be "canceled" by a waiver or proof of completing the 24 months in one's home country. There is a lot of information to be found on www.state.gov. I see you're from Cyprus- I don't know what exactly the situation is in your home country, but do you think you could qualify to apply based on Hardship to your spouse? If you need any info, please feel free to PM me.

Edited April 9, 2009 by KIMCORENE

[bubby 0]

Hi everyone,

A. File AOS as F-1 student hoping the USCIS will ignore the HRR just like they did with my work authorization B) . There's no clear indication of what someone in my case should do. I wonder whether it would hurt to apply anyway.

This may not work- your previous J-1 status most likely had no bearing on your eligibility to apply for work authorization, so I wouldn't go so far as to say it was "ignored" by USCIS. Misrepresentation on your AOS papers would have serious consequences, as remeber they will be doing background checks, and the 2 yr HRR will come up. The information on the instructions for the I-485 clearly state that if you have not completed/waived the requirement, you are ineligible to apply to adjust status.

C. Apply for a waiver. I could apply for a No Objection Statement, but there would be no grounds for it besides the fact that I almost fulfilled the HRR commitment. From what I know waivers are not normally granted for students who had government funding. If the waiver gets rejected does that mean I can still attempt to apply for AOS?

If you should apply for the waiver and it is rejected, you still would be ineligible to apply for AOS- not because you got rejected, but because you would still have the requirement. Have you considered applying based on Hardship to your USC spouse?

It doesn't matter which visa you currently hold, the requirement can only be "canceled" by a waiver or proof of completing the 24 months in one's home country. There is a lot of information to be found on www.state.gov. I see you're from Cyprus- I don't know what exactly the situation is in your home country, but do you think you could qualify to apply based on Hardship to your spouse? If you need any info, please feel free to PM me.

Hi,

Thank you for the input on my question! I appreciate it You seem to be knowledgeable on the subject! It would be really helpful if you could answer a few more of my questions I have been struggling with this issue for the past week and I can't seem to find an answer. I did talk to a lawyer briefly but I didn't get a substantial answer.

So, today I figured out that I should not apply for AOS until I have the HRR situation figured out. It's very unlikely that I can apply for exceptional hardship given our situation. My wife and I would move to Cyprus together and fulfill the requirement if it comes down to that. But how would I prove that I already covered 17 months. I have no documentation showing so. Will I certified statement not suffice?

Also, if understand correctly, is it possible to begin the process by filing the I-130 now? I believe I qualify for that based on the instructions.

I would consult an immigration attorney.

Good luck!

Shelly

Thanks Shelly, I'm still looking into it!

[KIMCORENE 0]

Yes, you can file the I-130- no problem . Documentation of your 17 months would be boarding passes for the flights there and back, any pictures taken in Cyprus during the period, stuff like that- and anything you could get from your family or any organizations back in Cyprus.

[bubby 0]

Yes, you can file the I-130- no problem . Documentation of your 17 months would be boarding passes for the flights there and back, any pictures taken in Cyprus during the period, stuff like that- and anything you could get from your family or any organizations back in Cyprus.

Interesting note. I will start assembling whatever I can find. Good thing I have plenty of pictures. I may also be able to find some cable bills and so. Otherwise I didn't keep any harder evidence. At the time I didn't have an intent of staying in the US and it so happened I met my wife last year.

This is what an attorney told me on why I may not want to submit the I-130 while I am still in the US:

"Because you may have problems coming back if you try to come back as a non-immigrant when your real intent is to immigrate.

But the worst that can happen is that they will keep you from coming in as a non-immigrant and you will do consular processing which would take about an additional 6 months. I mean if you don't care, you can file the I-130 now, be outside of the U.S. doing your 4 months, and by the time they approve everything, you can finish consular processing outside of the U.S. that should work. You just have to time it correctly because the entire consular processing for a K-3 spouse visa is about 6 to 9 months or more. So you risk being outside more than 4 months."

So I guess I can time my K-3 application such that it will be ready by the time I fulfill the HRR and I will receive the visa from the US consular in Cyprus. Given that it takes 6-9 months, does that mean I would submit a K-3 application to the USCIS before I leave the US and finish the processing at the consular, or, would I submit the application directly to the consular? Would I be eligible to apply for a K-3 if the HRR is still pending?

[KIMCORENE 0]

Whatever route you decide to use, an I-130 will be required...however, if you decide to go home and do the four months, why not apply for a CR1/IR1 visa instead of the K-3? Read here and see which would be better for your situation:

http://travel.state.gov/visa/immigrants/ty...types_1315.html

[bubby 0]

Whatever route you decide to use, an I-130 will be required...however, if you decide to go home and do the four months, why not apply for a CR1/IR1 visa instead of the K-3? Read here and see which would be better for your situation:

http://travel.state.gov/visa/immigrants/ty...types_1315.html

Good point, I will read into it and keep you posted on what we decide to do. Thank you much!

[jrichards 0]

My fiance and I are currently dealing with a the HRR as well. His CURRENT J1 does not have the 2-year requirement, but a previous J1 visa did have the requirement. We met with an immigration attorney who told us that we cannot file any AOS paperwork until we deal with this, and recommended that we apply for a No Objection waiver ASAP. The lawyer told us that as long as the home country provides a No Objection Statement, he had never seen a situation where the State Department had denied the waiver. My fiance only received about $2,500 from his home government, so we don't expect any objections. Apparently, waivers are very difficult to get only if you are a medical doctor or have received funding from the US government. His visa is still current, so he'll stay here while we wait for word on the waiver - we've heard that it will take anywhere from 2-4 months to receive a decision.

Advice from others who have dealt with the HRR would be very useful!

[bubby 0]

My fiance and I are currently dealing with a the HRR as well. His CURRENT J1 does not have the 2-year requirement, but a previous J1 visa did have the requirement. We met with an immigration attorney who told us that we cannot file any AOS paperwork until we deal with this, and recommended that we apply for a No Objection waiver ASAP. The lawyer told us that as long as the home country provides a No Objection Statement, he had never seen a situation where the State Department had denied the waiver. My fiance only received about $2,500 from his home government, so we don't expect any objections. Apparently, waivers are very difficult to get only if you are a medical doctor or have received funding from the US government. His visa is still current, so he'll stay here while we wait for word on the waiver - we've heard that it will take anywhere from 2-4 months to receive a decision.

Advice from others who have dealt with the HRR would be very useful!

I spoke with the board that gave me the funding and they pretty much told me not to bother applying for a waiver. Part of the funding came from the US government. Unfortunately we will have to fulfill the HRR, which is not the end of the world since I only have 4.5 months. We'll probably utilize it as a holiday. What sucks is that until then I won't be able to work, albeit having employment authorization. Right now I'm still trying to decide whether to submit the I-130 in speeding up the process for later.