Denied Greencard because of old J1 visa while wife hold F1 visa

[cumings 0]

I am in need of some help/advice on what to do next. I married a wonderful women from China this last December.

My wife entered this country in August of 2009 with a F1 visa. She had previously been an au pair on a J1 visa. Her J1 visa says there is a 2 year home requirement. We believe that this is a mistake since she was not being funded by either the Chinese government or the US government.

We had our interview on April.1 for her adjustment of status. The I130 was approved but the i485 was denied on the basis of the J1 visa with the 2 year home requirement. Is this a mistake since she is no longer on the J1 visa. Shouldn't the F1 visa be the visa that matters in this case.

My wife is miserable right now and I am scarred they are going to force her to leave the country if we cannot get this resolved.

[Inky 1,111]

Not sure if this will help any but I did come across a waiver for the j-1 two year foreign residence requirement.

Waiver of the J Visa Two-Year Foreign Residence Requirement, 212(e)

[cumings 0]

Not sure if this will help any but I did come across a waiver for the j-1 two year foreign residence requirement.

Waiver of the J Visa Two-Year Foreign Residence Requirement, 212(e)

Thank you.

Our problem is that the waiver will most likely not work. Her school in China will not provide any sort of documents so that we can make a Statement of no Objection with the Chinese Embassy in Washington. That is why we are hoping that the officer made a mistake and we will be able to file a motion to reopen the case.

[Inky 1,111]

If you haven't tried already maybe call the POE she came by and speak to some border patrol officers? They might be able to give some kind of information as to why they marked it the way they did. Just another idea

[Anh map 2,098]

EDIT after reading original post again

You say the visa states the 2 year requirement. The adjudicating officer has no choice as this was known to your wife when the visa was issued.

You ought to consult a qualified immigration attorney. Laurel Scott is known to be good with waivers. She has an online chat on Wednesdays. http://www.scottimmigration.net/

Edited April 4, 2010 by Anh map

[cumings 0]

EDIT after reading original post again

You say the visa states the 2 year requirement. The adjudicating officer has no choice as this was known to your wife when the visa was issued.

You ought to consult a qualified immigration attorney. Laurel Scott is known to be good with waivers. She has an online chat on Wednesdays. http://www.scottimmigration.net/

The visa does have a 2 year requirement. However she did not enter the country on that visa. She entered the country with her F1 visa. Shouldn't the F1 visa override her J1 visa?

Thank you for the advice. We are looking for a lawyer in the Detroit area. I will see if I can get on that chat on Wednesday.

[Kathryn41 3,205]

It doesn't matter if she entered the country on another visa - the terms of the previous J-1 visa are still in place and have to be observed. Anh Map gave you excellent advise. Good luck.

[Darnell 8,478]

You not say when the 2 year period started.

I'm surprised she got an F1 visa with the 2 year requirement still in effect from the J1. IMO - somethings wonky THERE.

Can you be more detailed about the timelines and timeticks? TIA !

[cumings 0]

You not say when the 2 year period started.

I'm surprised she got an F1 visa with the 2 year requirement still in effect from the J1. IMO - somethings wonky THERE.

Can you be more detailed about the timelines and timeticks? TIA !

I will try and give a timeline but this may not be accurate. I will talk to my wife again tonight to see if there are more details I am leaving out.

Prior to March 2009 - My wife talks to some lawyers checked her DS-2019 (which she says she may have thrown away) and said that the two year rule did not apply and that she could go to China and get her F1 visa.

March 13th 2009 - We met. My wife was currently holding a J1 visa.

June 2009 - My wife went to China.

June-August 2009 - My wife obtains F1 visa

August 2009 - My wife came back from China on F1 visa

September 5th - I ask her to marry me

December 21st - We are married

January 2010 - We sent out I 130, I485 and supporting documents

April 1st 2010 - We interview and I 130 is approved. However the I485 is not approved because of 2 year stipulation

If you need any more details than please let me know. I appreciate all the help and advice.

[cumings 0]

If you haven't tried already maybe call the POE she came by and speak to some border patrol officers? They might be able to give some kind of information as to why they marked it the way they did. Just another idea

Excuse my ignorance. Who is POE?

[VanessaTony 3,567]

Excuse my ignorance. Who is POE?

Point Of Entry

Your best bet would be to speak with the lawyer regarding the 2 year home requirement not being applicable, they must have something to prove it doesn't apply in order for her to have left and received the F1 visa.

[Minya's wife 25]

I am in need of some help/advice on what to do next. I married a wonderful women from China this last December.

My wife entered this country in August of 2009 with a F1 visa. She had previously been an au pair on a J1 visa. Her J1 visa says there is a 2 year home requirement. We believe that this is a mistake since she was not being funded by either the Chinese government or the US government.

We had our interview on April.1 for her adjustment of status. The I130 was approved but the i485 was denied on the basis of the J1 visa with the 2 year home requirement. Is this a mistake since she is no longer on the J1 visa. Shouldn't the F1 visa be the visa that matters in this case.

My wife is miserable right now and I am scarred they are going to force her to leave the country if we cannot get this resolved.

The 2 year HRR (home residency requirement) is not just for J-1s that are funded by the home or US govt. It is also issued if the program, though which the beneficiary obtains her foreign position, receives government funding, OR if he/she has 'specialized skills'.

Two-year Home-Country Physical Presence Requirement Conditions - An exchange visitor is subject to the two-year home country physical presence requirement if the following conditions exist:

• Government funded exchange program - The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;
• Graduate medical education or training - The exchange visitor entered the U.S. to receive graduate medical education or training;
• Specialized knowledge or skill: Skills List - The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skills List. Review the Exchange Visitor Skills List 2009.

More info here and also, here is more information on obtaining a waiver of the HRR.

[Luckygoat 2]

I will try and give a timeline but this may not be accurate. I will talk to my wife again tonight to see if there are more details I am leaving out.

Prior to March 2009 - My wife talks to some lawyers checked her DS-2019 (which she says she may have thrown away) and said that the two year rule did not apply and that she could go to China and get her F1 visa.

March 13th 2009 - We met. My wife was currently holding a J1 visa.

June 2009 - My wife went to China.

June-August 2009 - My wife obtains F1 visa

August 2009 - My wife came back from China on F1 visa

September 5th - I ask her to marry me

December 21st - We are married

January 2010 - We sent out I 130, I485 and supporting documents

April 1st 2010 - We interview and I 130 is approved. However the I485 is not approved because of 2 year stipulation

If you need any more details than please let me know. I appreciate all the help and advice.

Did she go back to china just to get a F1 visa, just to come back to the US to get adjust? Just asking because thats what it looks like.

Your best bet would have to be to contact a lawyer on this situation. I do not recommend anyone who has been denied to try figure anything out themselves.

[Darnell 8,478]

Point Of Entry

Your best bet would be to speak with the lawyer regarding the 2 year home requirement not being applicable, they must have something to prove it doesn't apply in order for her to have left and received the F1 visa.

I would suggest NOT contacting the POE at all.

IMO, the CPB goon at the POE made a mistake in letting her in the country on the F1 visa with a 2 year 'stay at home' edict in effect.

Agreed, though - contact an immigration lawyer

[milimelo 4,501]

I would suggest NOT contacting the POE at all.

IMO, the CPB goon at the POE made a mistake in letting her in the country on the F1 visa with a 2 year 'stay at home' edict in effect.

Agreed, though - contact an immigration lawyer

That's not quite a mistake - I've had friends who completed their J1 studies (with 2yr HRR), went back to Bosnia and got an F1 - this with full understanding that after their time on F1 is over, they have to return to complete the requirement.