J-1 Two Year Requirement - is 728/730 days suffiecient? (99% of two years)

[soccerguy845 3]

Hello all,

Me and my wife have been through the process of getting the K-1, and recently had our green card interview.
We received a letter asking for more information, specifically asking for proof that the J-1 two year requirement was met.

After researching how to prepare this evidence we realized that the time that she visited the states doesn't count towards her two years, and she visited multiple times on a tourist Visa.

So previously we thought she had done more than enough time in her home country, but now realizing after doing the math that she spent 728 days in her home country instead of the full two years (730 days).

We are very nervous and going to consult a lawyer, but anxious to know if anyone else has had a similar situation and what to expect. I'm surprised this has only come up at the last step because we submitted the J-1 a long time ago.

Does anyone have any information that will help us feel better or worst case grasp reality of the situation and realize we are screwed? Thanks!

[geowrian 22,335]

I'm confused at where you are in the process. Did you already get the K-1 and are doing AOS now? If so, the 2YHRR should have been evaluated before the K-1 was issued.

 

A single day short will not qualify. That said, worst case is they refuse the green card until it is met. Take a trip to Canada or Mexico or somewhere (assuming she has AP already).

Edited September 11, 2019 by geowrian

[soccerguy845 3]

11 minutes ago, geowrian said:

I'm confused at where you are in the process. Did you already get the K-1 and are doing AOS now? If so, the 2YHRR should have been evaluated before the K-1 was issued.

 

A single day short will not qualify. That said, worst case is they refuse the green card until it is met. Take a trip to Canada or Mexico or somewhere (assuming she has AP already).

Thanks for your response. Yes we did the interview for AOS, and were not approved immediately. Few weeks later we got the letter asking for evidence regarding the J-1.

 

Is going to Canada valid even if it's not the home country? Thanks again!

[geowrian 22,335]

*Moved from K-1 Progress Reports to AOS from K-1 Visas. OP is past the K-1 process. *

 

Just now, soccerguy845 said:

Is going to Canada valid even if it's not the home country? Thanks again!

...my bad, you're right. I was thinking of physical presence, not the 2YHRR for some mistaken reason in my head.

[soccerguy845 3]

1 hour ago, geowrian said:

*Moved from K-1 Progress Reports to AOS from K-1 Visas. OP is past the K-1 process. *

 

...my bad, you're right. I was thinking of physical presence, not the 2YHRR for some mistaken reason in my head.

Any opinions on having her go home to complete her time in order to add that to the evidence to be submitted? Would she be able to enter back into the country on the K-1? Again, I plan to get professional advice I'd just like opinions as I am anxious.

 

Update: I now see that K-1 has expired and therefore she would have to use the tourist visa so I don't know how that would work.

Edited September 12, 2019 by soccerguy845

[geowrian 22,335]

5 minutes ago, soccerguy845 said:

Any opinions on having her go home to complete her time in order to add that to the evidence to be submitted? Would she be able to enter back into the country on the K-1? Again, I plan to get professional advice I'd just like opinions as I am anxious.

 

Update: I now see that K-1 has expired and therefore she would have to use the tourist visa so I don't know how that would work.

The K-1 is single use, so that became void at her first POE anyway. If she exits the US with a pending AOS application and without Advance Parole (AP), the AOS application is automatically deemed abandoned and will be denied. So she can't use a tourist visa (not to mention, using a tourist visa as a means to immigrate is a huge no-no (it's fraud)).

 

Did she not apply for an EAD + AP alongside AOS? AP is granted via an I-131. There's no extra fee for it due to an I-485.

[Just Paul 4,591]

If you fill out  a timeline we can see where you are in the process and offer the best advice.

[soccerguy845 3]

24 minutes ago, geowrian said:

Did she not apply for an EAD + AP alongside AOS? AP is granted via an I-131. There's no extra fee for it due to an I-485.

She has the EAD, in fact she currently has a job. She does not have an AP unfortunately.

 

26 minutes ago, Paul & Mary said:

If you fill out  a timeline we can see where you are in the process and offer the best advice.

Sept 22, 2018 Married in the US

I-797 notice of action received on 10/12/2018

Interview notice arrived June12, 2019

Interview Occurred July 24, 2019  (no decision made at interview)

Request for evidence of compliance with 2YHRR was sent August 26, 2019

 

 

Thanks a lot for the support.

[geowrian 22,335]

1 hour ago, soccerguy845 said:

She has the EAD, in fact she currently has a job. She does not have an AP unfortunately.

Is it a combo card (See the "Serves as I-512 Advance Parole" on the front of it)?

[soccerguy845 3]

26 minutes ago, geowrian said:

Is it a combo card (See the "Serves as I-512 Advance Parole" on the front of it)?

Unfortunately Not. It specifically states that it is not valid for re-entry. 

[geowrian 22,335]

13 minutes ago, soccerguy845 said:

Unfortunately Not. It specifically states that it is not valid for re-entry. 

Darn =\

[EM_Vandaveer 2,368]

8 hours ago, geowrian said:

Darn =\

Makes no difference. 2-year HHR has to be either fulfilled or the waiver for it approved PRIOR TO applying for AOS AFAIK.

Edited September 12, 2019 by EM_Vandaveer

[soccerguy845 3]

30 minutes ago, EM_Vandaveer said:

Makes no difference. 2-year HHR has to be either fulfilled or the waiver for it approved PRIOR TO applying for AOS AFAIK.

 so even with a lawyer we’re provably screwed unless we can be slightly ambiguous about the time spent back in the home country to gain the 2 days?

 

...and then after rejection we go back to needing to get a k-1 again and starting from scratch?

[geowrian 22,335]

51 minutes ago, EM_Vandaveer said:

Makes no difference. 2-year HHR has to be either fulfilled or the waiver for it approved PRIOR TO applying for AOS AFAIK.

I was only able to find references in the FAM (since a K visa was not supposed to be issued if it was not met yet), but it only said "prior to obtaining permanent residency", in alignment with the INA.

I'm not saying you're wrong...this is a unique situation due to the prior error...I was just unable to find anything indicating that myself.

 

18 minutes ago, soccerguy845 said:

 so even with a lawyer we’re provably screwed unless we can be slightly ambiguous about the time spent back in the home country to gain the 2 days?

 

...and then after rejection we go back to needing to get a k-1 again and starting from scratch?

Are you including or excluding the dates traveled between the countries? The INA does not explicitly state full days, so even 1 minute there should technically qualify as a day.

 

I think it is time to seek professional assistance, though. At least a consultation.

 

It would be a CR-1/IR-1 this time since you are now married. Technically you could do the petitioning process while in the US, then obtaining an I-601A waiver for what will be the overstay due to unlawful presence, then just go back abroad to complete the 2YHRR and consulate interview.

...but this is still a "worst case" scenario. See what the attorney says.

[soccerguy845 3]

7 minutes ago, geowrian said:

I was only able to find references in the FAM (since a K visa was not supposed to be issued if it was not met yet), but it only said "prior to obtaining permanent residency", in alignment with the INA.

I'm not saying you're wrong...this is a unique situation due to the prior error...I was just unable to find anything indicating that myself.

 

Are you including or excluding the dates traveled between the countries? The INA does not explicitly state full days, so even 1 minute there should technically qualify as a day.

 

I think it is time to seek professional assistance, though. At least a consultation.

 

It would be a CR-1/IR-1 this time since you are now married. Technically you could do the petitioning process while in the US, then obtaining an I-601A waiver for what will be the overstay due to unlawful presence, then just go back abroad to complete the 2YHRR and consulate interview.

...but this is still a "worst case" scenario. See what the attorney says.

Great info. These were the specific dates that we have documented:

 

12/15/2015 left US to go home

9/8/2016 arrived in US

9/29/2016 left the US

3/28/2017 arrived in the US

6/6/2017 left the US

12/29/2017 arrived in the US

6/27/2018 left the US

9/10/2018 arrived in the US on K-1

 

IF I include all of these dates I get 732 days. If I include only arrivals or departures the sum is 728. With neither it’s 724.