From J1 to F1 then married

[AAndy 0]

Hello all,

I'll try to be as quick and concise as I can.

My wife entered the US on a J-1 visa in 2002, graduated, and went home for 5 weeks.

She then re-entered the US on a F-1 student visa for more school before fulfilling the 2 year requirement.

In 2010 we married, and applied for adjustment of status which was denied this week (4/27/2011) because she never finished the 2 year requirement. Her F-1 is expired and well past the 60 day grace period by now. Our immigration officer told us we could apply for the waiver, however lawyers tell us it would be a long shot. At this point, we are thinking on biting the bullet and have her go home for the 2 years.

My question is this: Is this a good idea? If she leaves this late into her F-1 expiring, will there be repercussions?

Also, what do I need to do in 2 years to bring her back again?

My thanks to everyone, these forums are SO helpful.

[romnick 15]

I really cant say much about your case but I do not think it is a good idea for her to leave the United states.I am sure other members with pool of experience in this case might be able to help you out.Good Luck!

[Casprd 167]

Why would you need to wait two years to bring her back? My understanding is as soon as she has left the US you can start the CR-1 process (IR-1 if you have been married two years already). It takes about 10 months or so unless there is a snag along the way.

[Harsh_77 716]

would need a waiver for not completeing the 2 yr stay in the home country.

[Little_My 464]

Casprd, the J1 visa often has a two year home stay requirement, meaning that the J1 visa holder is required to go home for a period of two years after his/her studies/exchange in the US is over. That is why the OP's wife's AOS was denied - she never fulfilled the two year requirement, and unfortunately re-entering the US with the F1 also does not remove the original J1 visa requirement.

How much overstay has your wife accumulated, Aandy? Keep in mind that while your AOS was pending, she was not accumulating illegal presence in the US. But did her I-94 (that was issued for the F1) expire before your AOS package was acknowledged by USCIS? If so, how many days? The issue is that if she at any point has accumulated more than 180 days of overstay,and she leaves the country now, she will trigger a 3 or 10 year ban to the US. After that, not only would you have to either wait for the 2 years to pass for the J1 requirement or try to get the 2-year home stay requirement waived, but you would have to get the overstay ban waived as well.

Edited April 29, 2011 by Little_My

[AAndy 0]

Quick replies! I love u guys.

If the time we were waiting since aos was accepted didn't count, we are no where near 180 days. Thank goodness for that! So it would only be the 2 years then? And what do I do after those 2 years?

[Little_My 464]

If you wait out the two years, then you would either apply for the CR1 spousal visa, or, if you had also been living abroad with her, you might be eligible for DFC (direct consular filing), which would be much faster. You can read about both processes under the "guides" link here on VJ to get an idea what it entails and how long it takes.

Personally, I would still look more into the waiver issue - I have no idea what the stats are in terms of getting a J1 hmestay requirement waived, but I do know of many who have succeeded.

[Little_My 464]

BTW, This is what it says on travel.state.gov about the waiver:

If a J-1 exchange visitor who is subject to but does not wish to comply with the two-year foreign residence requirement may apply for a waiver of that requirement under any one of the five applicable grounds for a waiver set forth in the INA 212(e). Choose the one that you qualify for or applies to your situation.

* No Objection Statement (NOS):

The EV's home country government issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the EV not returning to the home country to satisfy the INA 212(e) two-year foreign residence requirement and does not object to the possibility of the EV becoming a resident of the U.S. The NOS may also be issued by a designated ministry of the EV's home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division. The EV has the responsibility for obtaining a no objection statement from his/her home government.

Note: The law precludes the use of this option by foreign medical physicians, who acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

* Request by an interested government agency (IGA):

If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor's departure for two years to fulfill the INA 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the EV for sake of public interest. The IGA request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. The EV has the responsibility for obtaining an IGA request from a U.S. Federal Government agency.

Note: For IGA applications on behalf of foreign physicians, who agree to serve in medically under-served areas, please refer to Federal Register Volume 62, No. 102 of May 28, 1997.

* Persecution

If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he/she were to return to his/her home country, the EV may apply for a persecution waiver. This waiver basis requires that the EV submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (CIS), within Department of Homeland Security. Only if CIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case under this basis. Once CIS makes a decision, it will forward directly to the Waiver Review Division its decision on Form I-613.

* Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor:

If an exchange visitor can demonstrate that his or her departure from the United States would cause exceptional hardship to his or her U.S. citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver. (Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship.) This waiver basis requires that the EV submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (CIS), within the Department of Homeland Security. Only if CIS makes a finding of exceptional hardship will the Waiver Review Division proceed with the waiver case under this basis. CIS will forward its decision directly to the Waiver Review Division on Form I-613.

* Request by a designated State Department of Public Health or its equivalent, CONRAD:

Pursuant to the requirements of Public Law 103-416, a foreign medical graduate who has an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area, and agrees to begin employment at that facility within 90 days of receiving such a waiver, and who signs a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years, may apply for a waiver under this basis.

The EV must first apply with a state public health department which is allowed to request 30 such waivers per federal fiscal year. Five of the thirty requests may be for EV physicians who will serve at a facility which may not be located within a designated area but serves patients who live within a designated health care professional shortage area. The state public health department will forward the Conrad requests directly to the Waiver Review Division if agrees to sponsor the EV for such a waiver.

Note: Only foreign medical doctors who received their J-1 status to pursue graduate medical education or training may apply for a waiver under this basis.

So, out of those, I'd say the "No objection" statement would be her best bet Proving extreme hardship is pretty challenging to do.

[Harpa Timsah 13,258]

There have been people on this board who have been successful with the J-1 2-year HRR requirement, but it really depends on the country and where the funding came from. I have read that China, for instance, will not under any circumstances issue a No Objection Statement. I would ask your lawyers why they think it's a long shot in your case.

Speaking of lawyers, did you use on to file this? And they didn't know they needed to waive the 2-year HRR requirement before applying for AOS? If that is true, I couldn't trust their judgment about the waiver. I would fire them and get a second opinion. Good luck.

Look up member John+Noemy who recently got a NOS for a J-1 visa HRR.

[AAndy 0]

Clarifications:

No, we didn't use a lawyer to file the first time.

It actually HAD been over 180 days when we filed for AOS. It seems as though our options have just been limited, as another 3-10 years would be bad.

We also found out her J-1 was issued through a privately funded organization in Indonesia (where she came from). After contacting the Embassy in Chicago, they said there should be no 2 year requirement through the program she used. They recommended requesting a different immigration officer, as the one we had may have been confused. Has anyone heard of that? And good luck trying to contact anyone; there are no phone numbers anywhere! Since we have been already technically DENIED, I think it's time to involve the lawyers.

[Little_My 464]

What does her visa say? Does it read "subject to 2 year home residency requirement" or something to that end?

Even if it does, I have heard people being mistakenly issued J1 visas that have the home residency requirement attached, even though it shouldn't have been. In that situation you have to probably prove to USCIS that the home residency requirement was mistakenly added to her visa, although it shouldn't apply to her.

[Bluestone14 0]

OMG, now I'm really worried. I have almost the same paths as your wife, from J1 to F1 then going to getting married in May and starting the entire AOS process.

I came to the US in 08/2007-01/2008 for an exchange program/internship on a J1 visa and met my fiance there. I went back to school in my home country to finish my bachelor's degree upon the completion of the program on 01/21/2008 and then we remained a long-distance relationship. I then got accepted by a master's program and came back again on a F1 visa, and sadly we're still in different cities. We are going to get married on 05/21/2011 before my visa expires on 07/11/2011 including the 60-day.

The exchange program/internship is not sponsored by my home country government. All attendants paid our own fees and got paid by the company we interned with. As being told at that time, we shouldn't be subject to the 2-year rule. However, I do have subject to 212(E) on my J1 visa stamp. I don't know if this matters, but after the program, all the attendants got back to the US consular together and got "CWOP" written on our visas.

If counting the days, I went back home from 01/21/2007 to 8/10/2009, and also got back home for a summer break from 5/15/2010 to 8/26/2010. I think it's very close to 2 years (it's like 22 months already), but just not really 2 years. What should I do? Will I face the same rejection....

[AAndy 0]

The exchange program/internship is not sponsored by my home country government. All attendants paid our own fees and got paid by the company we interned with. As being told at that time, we shouldn't be subject to the 2-year rule. However, I do have subject to 212(E) on my J1 visa stamp. I don't know if this matters, but after the program, all the attendants got back to the US consular together and got "CWOP" written on our visas.

If counting the days, I went back home from 01/21/2007 to 8/10/2009, and also got back home for a summer break from 5/15/2010 to 8/26/2010. I think it's very close to 2 years (it's like 22 months already), but just not really 2 years. What should I do? Will I face the same rejection....

My wife has the same thing written on her J-1, even though she should be exempt. I'm not sure what the "CWOP" means... what is that for? Perhaps that excludes you from the 2 year requirement... my wife has no such stamp. Our immigration officer saw the "Subject to 212(E) and denied us outright. The officer did ask for some kind of "pink slip" for the exchange student J-1 visa, but my wife said the embassy took it, and she never received a copy. Perhaps it says on this slip whether or not the visa holder is subject to 212(E)?

Either way, make sure you have some proof it's not subject to 212(E), OR get the waiver BEFORE APPLYING TO AOS, and include a copy of the waiver in your packet. If we cannot somehow prove my wife is not subject to 212(E), we have to try and get a waiver, and IF we get the waiver, we have to start from scratch. Redo the paper work, re-paying the fees, another medical exam, more biometrics... UGH. AVOID AT ALL COSTS!

*** EDIT, just found:

CWOP - Canceled without prejudice

Edited April 29, 2011 by AAndy

[Bluestone14 0]

CWOP stands fro cancelled without prejudice. Maybe it's not even relavant to the rule/waiver. In which phase did they reject you? Interview? That must be so painful for your guys. I do think a lot of people have been saying whatever restrictions or no restrictions written on the stamp do not always mean in the same way. Hopefully we both get waivers or find a way out.

Being away from each other is such a killer. I would suggest you to try all the other ways first before taking this route. Also, that 5 weeks can still be counting towards the 2 years right? I feel like I can try to go back home for a 2-3 months, but we both really don't want to be apart again and applying through K1 is another significant cost adding on to the pile of costs and takes a really long time.

I didn't expect this to be that complicated and I thought mine J1 restriction can be or already have been moved over the years. But hang in there, I believe you and your wife will find the best way to overcome these difficulties and it can only make your relationship stronger when you work together on it. Good luck on everything!

[Romancita 3]

Hi!

I came here with J-1 with the 2 HRR restriction but I got the waiver based on No Objection letter from my country. It took 5 weeks to get it from the time all the documents were listed on the Department of State website. You got some good advice here. I hope it will help you!