Need advice on I-130 and J-1 2 year Home Residency Requirement

[FLPilot 0]

Hi everyone

I am new to this forum and I am hoping someone has some experience with this issue and can give me some help.

I am a US citizen and live in Florida. My wife is a Russian citizen who visited my city on a US State Department funded J-1 visa back in December 2007. She is a Russian attorney and came here to study our legislature. She returned to Russia in May of 2008, and her J-1 visa has a 2 year home residency requirement back in Russia. If she had never left Russia since returning, her 2 years would be up this May. However, she spent April thru June of 2009 in Florida with me at which time we got married. She came here then on a 2 year, multi-entry B2 visa. Rather than try to stay in the US after we got married and look like we were trying to commit fraud, she returned to Russia on July 3, 2009. In addition to the 3 months she spent here last year, she has been out of Russia for a total of about 3 months on business (family owned clothing retail business), traveling to France and Italy, and also a couple of trips to Europe where she and I vacationed.

I am about ready to file the I-130 paperwork but have the following important questions:

* Does ALL the time she has spent out of Russia not count towards the 2 year HRR? If not, then her 2 years won't be satisfied until around November 2010, if you add 6 months to May. I keep getting different answers to this question. Some people say only the time she spent back here in the US counts against her, others say the law is enforced strictly and ANY day she was physically out of Russia won't count towards the 2 year HRR. This seems rather harsh, as you could then never leave your home country for a vacation out of your country.

* Can I file for the I-130 while she is still waiting to fulfill the 2 year HRR? I know she can't be issued a CR-1 or IR-1 while she is waiting out the 2 year HRR, but it takes such a long time anyway that I would like to use up some of the next several months letting the I-130 get processed. If it takes about 7 months to get a IR-1 (including 3-5 months for the I-130 approval), then does that mean she could get her I-130 approved in 5 months, maybe still have 1-4 months to wait out the 2 year HRR, but then after that is up have just 2 months left to get the visa? Am I making any sense? I guess I am asking, do I have to wait out the whole 7 month process starting when her 2 years is up, or can I go ahead and get the I-130 out of the way now? If so, WHEN would they determine when her time is up? At the interview by looking at stamps in her passport? By reviewing our paperwork? I just don't want to screw this up and have them tell me I committed fraud by applying for a I-130 while she was still fulfilling her J-1 2 year HRR.

* Is the CR-1/IR-1 the best way to go? We were initially going to do the K-3. but if this takes about the same time or slightly longer, isn't it better to just go ahead and get the immigrant visa? Does it really take about 7 months from the time you apply for the I-130, or is it much longer than that?

Thanks so much for any help you can provide!

[canadian_wife 1,791]

I can't help you with the J-1 or the home residency requirements, someone more experienced will inform you shortly I"m sure.

The K-3 is dead, it is no longer an option. The I-130 is really you're only route to take now. 7 months is about average but you're looking at anywhere from 6 - 10 months on average.

Good luck on your journey, welcome to VisaJourney

[FLPilot 0]

Thanks for the response CW. This site is an incredible source of information and support!

Can you elaborate on what you mean by "the K-3 visa option is dead"? Do you mean for me, or in general?

Thanks

[canadian_wife 1,791]

When filed, for quiet some time time (talking years) the I-130 and the I-129F are being approved on the same day (literally for everyone). Now, NVC will begin cancelling the I-129F's if both approved petitions arrive at NVC - meaning, if the I-129F reaches NVC and there's an approved I-130 on the way (or already there) NVC will cancel the I-129F. So therefore is absolutly no advantage to the I-129F. And yes, they are almost always approved on the same day from USCIS.

There is no advantage to the I-129F

Good luck.

[milimelo 4,220]

Your wife does not have to spend entire 2 yrs in Russia only. As long as she left the US on time and went to Russia she is fine. 2-3 months visiting other countries (US included) is also ok - her main residence is in the Russia even if she is visiting the US and the G325a should reflect that.

Also, definitely go with the CR-1 visa = only I-130 petition and don't even bother with I-129f - that's useless these days.

[FLPilot 0]

Thanks canadianwife and milimelo. I hope you are right about them not counting her days out of Russia towards the 2 year HRR. It doesn't make sense that she could never leave her country for 2 years, but the rule seems to state that she must be physically present in her home country for an aggregate of 2 years. Does anyone know when they determine this? Do they look at the stamps in her passport when I submit a copy for the I-130 application, and determine then when her 2 years is up? Or would it not be until her interview in Russia? If so, she could go to the interview and they could decide she still hasn't fulfilled the 2 years, and reject the whole thing.

Sorry for all the questions, but I have been unable to get answers anywhere else!

[mustafa1232 3]

Thanks canadianwife and milimelo. I hope you are right about them not counting her days out of Russia towards the 2 year HRR. It doesn't make sense that she could never leave her country for 2 years, but the rule seems to state that she must be physically present in her home country for an aggregate of 2 years. Does anyone know when they determine this? Do they look at the stamps in her passport when I submit a copy for the I-130 application, and determine then when her 2 years is up? Or would it not be until her interview in Russia? If so, she could go to the interview and they could decide she still hasn't fulfilled the 2 years, and reject the whole thing.

Sorry for all the questions, but I have been unable to get answers anywhere else!

hi you are confusing and involving so many question why you are going hard way which is fullfill of difficult question in my opinion the simple and the easyiest way you can filed i-130 petation when your i-130 finally approved near about 4 to 6 month peroid uscis transfer your case to nvc and nvc send you a bill when you recieved the bill you have 1 year time to pay all the nvc bill you can wait until your wife 2 year not complete in her home country when you reach near about 2 year you have a option to pay all the nvc bill when you clear all nvc bill your process continue again at the time of previous hold position

there are 2 path you have to take when going through the nvc process

1 the ds 3032 generates vi bill which then generates the ds-230

2 the aos affitdafit of support fee generates the i864 which take another couple of month

when both path are pay and completed they will complete the case and make the appointment with the embassy and your wife also have another advantage more than 2 year of marriage she is automatically qualifay ir1 which is also 10 year green card resendecy which is applay port of entery time

[Aspasia 0]

* Does ALL the time she has spent out of Russia not count towards the 2 year HRR?

* Can I file for the I-130 while she is still waiting to fulfill the 2 year HRR?

If so, WHEN would they determine when her time is up? At the interview by looking at stamps in her passport? By reviewing our paperwork? I just don't want to screw this up and have them tell me I committed fraud by applying for a I-130 while she was still fulfilling her J-1 2 year HRR.

* Is the CR-1/IR-1 the best way to go? We were initially going to do the K-3. but if this takes about the same time or slightly longer, isn't it better to just go ahead and get the immigrant visa? Does it really take about 7 months from the time you apply for the I-130, or is it much longer than that?

Hi,

I am also a Russian citizen with a 2YHRR (2-year home residency requirement), married to a USC. Strictly speaking, you do have to spend exactly 2 years in Russia, and only physical presence in Russia is counted (as proved by entry/exit stamps in your wife's passport). The 2 years are cumulative, not consecutive. However, some visa officers are not so strict and will overlook vacations, etc, and will count them as time spent in Russia. Also, in some cases spending 20-22 months in Russia instead of 24 can be considered "sufficient fulfillment". I am not sure exactly how all this is determined, but this is what I heard from other fellow 2YHRR-ers. It's not a precise science, it depends on your consular officer, but you never want to lie in your immigration documents.

We are doing CR-1 since for us it made the most sense. I am not 100% sure but from what I remember your wife is not eligible for a K-visa anyway, until her 2 years in Russia are up. I remember we were looking at the K visa option and decided to do the CR-1, I think that was the main reason (since I still haven't finished my 2 years).

You can apply for I-130 right away, it is perfectly legal, without waiting for 2YHRR to be finished, and select processing at the Moscow embassy. The I-130, NVC and then appointment scheduling take a while anyway, and if you start right now, you will likely be done around November. If a visa appointment is scheduled before your wife's 2 years are up, she can call the embassy and reschedule it to a later date.

Hope this helped and good luck!

[Aspasia 0]

Btw, I forgot to add. Whether 2YHRR has been fulfilled is decided at the time of the visa interview by the consular officer, not when you apply for a I-130.

[FLPilot 0]

Hi Aspasia

Спасибо большое!

I REALLY appreciate you answering me and giving me some good "inside information." It has been nearly impossible to get an answer to my question as to exactly how they count the 2 years spent back in Russia. Hearing from a Russian citizen who has been through this really helps. We know they won't count the 3 months she spent here in the US last year, but we hope they will overlook the week or 10 days she has spent in Italy or France every 3 months for the past 2 years. Since May of 2008 she has met me in Montenegro, Paris and Vienna for a total of about 30 days. She has also spent about the same amount of time in Milan and Paris with her Mother conducting business for their family owned fashion business. I am hoping they will overlook some of this at the interview. However, like you said, it may take until November anyway for her to get an interview date. We are sending in the I-130 application this week, so I figure it will be June for that approval, then another 4-5 months to send in the next chuck of paperwork and get an interview in Moscow. I mainly wanted to make sure we could go ahead and file for the I-130 while she still had time left on her 2 year HRR. If we had to wait until the 2 year HRR was up to start ANYTHING, it would take FOREVER to get her here.

Thanks again and best of luck to you!

[Aspasia 0]

Hi Aspasia

Спасибо большое!

You are welcome and I am glad I could help. I know how convoluted the process can seem, and it can be hard to get correct answers. Our own lawyer told us to wait until my 2YHRR was up to do anything, and we lost a lot of time. Turns out, you can't do Adjustment of Status from within the US until 2YHRR is either served or waived, but you can get I-130 approved and all the NVC processing out of the way. You just can't get the visa stamp until 2YHRR is finished.

Also, for the visa interview, it seems that some consular officers are very particular about 2YHRR - I've heard stories about people having to produce their passports with entry/exit stamps, and the consular officer literally counting the days. I've also heard stories of people never being asked about 2YHRR, even though they truthfully listed in their paperwork that they were a subject. I hope your case is the latter.

Best of luck to you too and I hope everything goes smoothly for you and your beautiful wife

[JT114881 2]

Your wife does not have to spend entire 2 yrs in Russia only. As long as she left the US on time and went to Russia she is fine. 2-3 months visiting other countries (US included) is also ok - her main residence is in the Russia even if she is visiting the US and the G325a should reflect that.

Also, definitely go with the CR-1 visa = only I-130 petition and don't even bother with I-129f - that's useless these days.

Sorry but I believe this is incorrect. You must fulfill the 2 year residency requirement in the country that issued the J1 visa to you. I.E. if Russia issued her the J1 visa, she needs to fulfill the 2 years there in Russia. Any time spent out of Russia, in any other country other than Russia, stops the clock until she returns.

[milimelo 4,220]

Sorry but I believe this is incorrect. You must fulfill the 2 year residency requirement in the country that issued the J1 visa to you. I.E. if Russia issued her the J1 visa, she needs to fulfill the 2 years there in Russia. Any time spent out of Russia, in any other country other than Russia, stops the clock until she returns.

Russia does not issue American visas - that is the responsibility of the US Dept of State.

Here's my case - J1 sponsored by the US Gov't. Had to spend two years in my home country which I did. My clock started in July 2002. I did have 2-3 months absence as I was traveling. Had no problems getting a tourist visa to the US and spent a month there. CO knew about J-1 requirement and for me it was never an issue. My place of residence has always been my home country - who's to keep me from traveling if I disclose all of that on the forms?

[drewgreen 0]

My wife was denied her K-1 last year because she failed to meet her 2-year requirement by approximately 10 days.

It blew us out of the water. Make sure you meet this requirement or they will deny you.

They didn't care that we had a son or anything else. 30 day notice to leave the US.

Edited February 18, 2010 by drewgreen

[kg8183 1]

My wife was denied her K-1 last year because she failed to meet her 2-year requirement by approximately 10 days.

It blew us out of the water. Make sure you meet this requirement or they will deny you.

They didn't care that we had a son or anything else. 30 day notice to leave the US.

I'll add my 2 cents as I was also a holder of J-1 with 2 year home residency requirement. The two years, as stated by others, must be fulfilled by living in Russia. Any time spent outside of Russia does not count. Thankfully, it is cumulative. I still have to fulfill 16 months of residency, and I was told by an attorney that copies of pages from my passport with entrance and exit stamps will be sufficient to show the 8 months of stay in my home country. If your spouse has the old plane tickets, itineraries, bills, etc these can also be submitted in addition to the entrance/exit stamps.

Just to clarify one thing. How many months before the residency requirement will be fulfilled would you suggest an I-130 should be submitted for CR-1?

Thanks

Edited February 19, 2010 by kg8183