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Filed: H-1B Visa Country: Russia
Dear VJ community, I need you help/advice. Here is my situation:

My employer is sponsoring me for a GC, we are waiting on PERM but if all goes well should be filing for I-140/I-485 (EB2) in February 2015.

Back in 2001 I was issued a J1 visa as a participant of an exchange program for high school students. I no longer have the DS-2019 for that visa but I am fairly certain that on the visa itself it said "two year rule does apply". However, when I was entering the US on the that J1 visa the immigration officer wrote on the back of my I-94 "student, two year rule does not apply", I made a copy of that note but the original I-94 was of course taken away when i left the country. During my exchange year in the US I applied and got into college. After my exchange program finished I went back to Russia <my home country at the time> and applied for a student visa at the embassy in Moscow. During my visa interview the 2YRR came up but after I showed him the copy of the I-94 with the annotation and the embassy officer said that it looks like I am ok and granted the visa. Unfortunately the copy of the I-94 with the annotation was never returned to me.

Since that time I have finished my undergraduate and graduate degrees and have been working in the US on an H1B visa for the past 7 years. The 2-year-rule never came up either during the subsequent F1 applications or during the three H1B applications <I always disclosed my previous J1 status in the applications>.

To make the matters more complicated, my parents and I mover from Russia to Germany in 2003 as refugees (so after my first year in college and a year after I came back from my J1-based exchange program). At the time of our move I was still a minor so it's not like I could have stayed behind in Russia even if I wanted to. My only visit to Russia since July 2003 was a two week trip in 2009. Both my parents live in Germany and I don't have any relatives in Russia or any ties to the country.

So here are my questions:

1. Does or does not the 2-year-rule apply to my case? Since that conversation at the Moscow embassy I have always assumed that it does not since that's what the embassy officer told me and since it never came up during the several H1B applications. However, I have recently had a conversation with a friend who is also an immigration attorney and participated in the same program as I did and she said that she is "99% sure that the two year rule does apply". She seems to think that this could turn into a huge issue once I file the I-485

2. If the 2 year rule did indeed apply, would the time I spent in Germany count towards the HRR? Since my family moved to Germany as refugees back in 2003 and I was a minor, I wouldn't have fulfilled the 2 year residency requirement even if I didn't do my undergrad in the US

3. And last but not least, what should i do now? Let the sleeping dogs lie and hope that no flags are raised during the I-485? Try to get an advisory opinion? A waiver?

Please, please, please any help or advice is very much appreciated.



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I'm not sure myself if the 2 year requirement means that you have to go back to the country where you are from, it probably only applies to any residence outside the U.S. because the term itself is called "foreign residence requirement". Maybe someone can clarify that.

In any case if you were told that you didn't fall under the 2 year requirement, then you shouldn't have to file a waiver. However you should get the advisory opinion to submit with the AOS.

Here is a link:


Edited by Ian H.

This does not constitute legal advice.

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It's called the home residency requirement, not the foreign residency requirement. Only time spent in the originating country (in this case: Russia) would contribute to the two years.

You should certainly file an advisory opinion request with the DoS and see what they say.

Edited by Hypnos

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Filed: H-1B Visa Country: Russia

I understand that it's call a "home residency" requirement but the issue is that Russia hasn't been "home" since 2003 when my parents and I moved to Germany on a refugee status. I couldn't have stayed back in Russian because in 2003 I was a minor and as far as Russia is concerned I don't live there anymore <not registered there, don't hold the internal passport etc>

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Hmm...they seem to be ambiguous with regards to the term. On their website they use the term "foreign." They nonetheless indicate that you have to return to the country of your legal residence when the J1 was issued, which in this case would be Russia. The advisory opinion is really your only option because I have heard the waivers are usually pretty hard to get. They also count time abroad or in the US if for persons under their government's orders.


Certain exchange visitors (J-1) are subject to a two-year home-country physical presence requirement which requires you to return to your home country for at least two years at the end of your exchange visitor program. This is also known as the foreign residence requirement under U.S. law, Immigration and Nationality Act, Section 212(e). If you are unable to return to your home country to fulfill the two-year requirement, you must obtain a waiver approved by the Department of Homeland Security prior to changing status in the United States or being issued a visa in certain categories for travel to the United States.

This does not constitute legal advice.

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Filed: Lift. Cond. (apr) Country: China

~duplicate thread removed~

~Please refrain from multiple posting of same topics~

Completed: K1/K2 (271 days) - AOS/EAD/AP (134 days) - ROC (279 days)

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