CFO Question - J1 with 2 year residency requirement to K1

[BB&SVW 29]

I was issued a J1visa 4 years ago with a 2 year residency requirement. I met my boyfriend/fiance during my internship and finally pulled the trigger on K1 visa in August 2018.

 

Is it automatic that they will count from when I arrived to back to the Philippines from my J1 assignment and count 2 years from there? I have traveled back and forth to the US after that. Do they really compute for the total number of months? Or will I need a waiver? 

[Hank_ 9,171]

13 minutes ago, BB&SVW said:

I was issued a J1visa 4 years ago with a 2 year residency requirement. I met my boyfriend/fiance during my internship and finally pulled the trigger on K1 visa in August 2018.

 

Is it automatic that they will count from when I arrived to back to the Philippines from my J1 assignment and count 2 years from there? I have traveled back and forth to the US after that. Do they really compute for the total number of months? Or will I need a waiver? 

The way it reads is 2 years physical presence.   The way I read it is you would need a waiver for anytime less than the 2 years in your country of citizenship.

 

https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor.html

 

22cfr \ 22 CFR \ PART 41?VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED \ § 41.63 Two-year home-country physical presence requirement. 

Edited January 17, 2019 by Hank_

[payxibka 10,044]

10 minutes ago, BB&SVW said:

I was issued a J1visa 4 years ago with a 2 year residency requirement. I met my boyfriend/fiance during my internship and finally pulled the trigger on K1 visa in August 2018.

 

Is it automatic that they will count from when I arrived to back to the Philippines from my J1 assignment and count 2 years from there? I have traveled back and forth to the US after that. Do they really compute for the total number of months? Or will I need a waiver? 

They actually count the number of days.  Time out of country is excluded from the number of days

 

Fulfillment of the two-year foreign residence requirement requires that a person reside and be physically present in the country of nationality or last residence for an aggregate of at least two years following departure from the United States. See INA § 212(e), 8 USC § 1182(e).

One day of physical presence means one 24 hour period of physical presence in the home country...

[C90 376]

2 year rule is from the moment you get back to your home country. Visiting the US is fine, as long as you didn't come here on a visa to stay longer then 90 days. If that's not the case and you've been in your home country for 2 years or more after J1 you don't need a waiver. I was here on J1 2012-2014, filed for K1 in 2017 and was fine.

[BB&SVW 29]

23 hours ago, C90 said:

2 year rule is from the moment you get back to your home country. Visiting the US is fine, as long as you didn't come here on a visa to stay longer then 90 days. If that's not the case and you've been in your home country for 2 years or more after J1 you don't need a waiver. I was here on J1 2012-2014, filed for K1 in 2017 and was fine.

so I assume they wouldn’t give me a hard time about it...?

 

I counted the days/months that I would have completed the 2 years and it has lapsed June 2018. 

[C90 376]

Just now, BB&SVW said:

so I assume they wouldn’t give me a hard time about it...?

 

I counted the days/months that I would have completed the 2 years and it has lapsed June 2018. 

Nope, 2 years is 2 years. They never even asked about my J1 in my K1 interview. Just gather some evidence for your AOS like your old J1, I-94 from when you left after J1 etc to send with that package.