Had J1 Visa with 212 (e) 2 Year Residency and now applying for IR-1 / CR-1 Spouse Visa

[grad_student 11]

Hello there, I am not sure if this is the right sub-forum to post or should I post it in the IR-1 / CR-1 Spouse Visa Process & Procedures forum. But here goes my situation:

I was studying in US, working towards my PhD. I was on J1 Exchange visa which also has 212 (e) rule typed on the visa stamp. I am pretty sure this rule applies to me. While studying, I married a US citizen. We filed our I-130 form in mid August. I recently moved back to my home country and my 2 year home residency period started beginning September. I am holding high hopes that I will be able to immigrate to US on CR-1 Visa as soon as I fulfill my 2 year residency requirement in my home country.

I have few questions with regard to the application process for the CR-1 Immigrant Visa, and I am really hoping to get some helpful info out of here, as my google searches have been coming empty. I have good understanding of how the Immigrant Visa process works. I am little unsure about how the process will be with my 2 year home residency requirement.

I am expecting that our I-130 will be approved in about 7-8 months. At that time, I would not have fulfilled my 2 year residency requirement. My main question is, should we keep the process on applying for Immigrant Visa rolling. That is, once the USCIS approves the I-130, we should proceed with normal procedure of Immigrant Visa application with NVC. Or should we wait and intentionally delay the process for the application of Immigration Visa at some point in the application process.

My main concern here is that what happens if we finish all the required procedures and our case gets forwarded to the local embassy, and at the time of the interview for my Immigrant Visa, I have not fulfilled my 2 year home residency requirement.

I would really appreciate if someone went through the same situation before.

Thanks

[Free.bird 2]

I am in the same situation currently, and from what I understand from numerous discussions with lawyers, you should intentionally slow down at NVC stage, but not abandon the petition. That means, you should keep in contact with NVC, send documents one at a time, keep emailing them and let them know you do not intend to abandon your petition. If the case comes to the embassy before your 2 year hrr is up, there might be complications and even denial, in any case, your visa will not be issued until 2 years are up.

[StrawberryKiss 170]

Not sure if it applies to your cases, but you can also file waivers for the hrr

http://travel.state.gov/content/visas/english/study-exchange/student/residency-waiver.html

Edited October 3, 2014 by StrawberryKiss

[grad_student 11]

I am in the same situation currently, and from what I understand from numerous discussions with lawyers, you should intentionally slow down at NVC stage, but not abandon the petition. That means, you should keep in contact with NVC, send documents one at a time, keep emailing them and let them know you do not intend to abandon your petition. If the case comes to the embassy before your 2 year hrr is up, there might be complications and even denial, in any case, your visa will not be issued until 2 years are up.

I am planing on having my wife call the Dept. of State and ask this question as well. Have you tried that already? I am not expecting that calling them would be helpful, as my past experience tells me. I just want to know what other facing the same situation did. Any help will be much appreciated.

Not sure if it applies to your cases, but you can also file waivers for the hrr: http://travel.state.gov/content/visas/english/study-exchange/student/residency-waiver.html

I am done with the program, back in my home country, and have started the 2 year residency requirement. This is not an option now.

Edited October 3, 2014 by grad_student

[Free.bird 2]

I tried to call and email DOS, but their answers were vague and not very helpful. The problem is, you will only get to speak (or get email response from) to Tier 1 consultant, and their answers are very standardized and these consultants are not those who make actual decisions on your case. So, the only way to be safe here is to remember 2 things:

1. we WILL NOT get immigrant visa unless 2 year hrr is over

2. NVC MIGHT consider your case abandoned if you do not keep in touch with them about your case (usually, if NVC does not receive a response on the case for a period of 1 year, they consider the case abandoned and you might have to refile or file the motion to reopen, which is costly and takes time)

So, you have to let them know your situation and time it out right, so that NVC get your documents and do not close your case. As you know, there are several stages of NVC process and they are very sequential, that is, you cannot proceed to AOS stage until you send them DS-260. (the order of filing the documents might be different, but I hope you get my point).

[grad_student 11]

I have been told by a lawyer to keep the process rolling with NVC. NVC will block / halt the process at one of the last stages itself if the 2 year home residency requirement is not fulfilled. Each time they will pull my case, it will be flagged. After the 2 year requirement is fulfilled, it will not be flagged any more and the usual steps will resume. Thats why understanding so far.

Which stage of the immigration process are you at by the way, if you dont mind sharing it. Thanks

[milimelo 4,196]

Given how long it takes to get males from your country through AP, I wouldn't slow down anything. You can be pre-approved at the interview and then they'll just hold your passport until you're out of AP and past the deadline and then print your visa.

[Free.bird 2]

I am waiting for NOA 2, it is already outside of normal processing time, so I have no idea when it will be approved. I also have only 8 months left of my requirement to fulfill and taking into acocunt recent delays in NVC process (checks the thread August 2014 NVC filers), 7-8 months will be just right from approval to the interview.

I do not think you will be flagged or hindered at NVC stage, I have seen VJ-ers being past NVC stage while still subject to 2 year hrr. NVC does not care about your 2 year requirement, the consultate does. If you look at the guide for CR-1 process, nowhere does it ask for copies of your visas or about 2 year home residency, NVC will not even know your situation and frankly, will not even care. But, that's my opinion and as I said before, I talked to way too many lawyers to get this sorted out, but I may be wrong.

[grad_student 11]

I am waiting for NOA 2, it is already outside of normal processing time, so I have no idea when it will be approved. I also have only 8 months left of my requirement to fulfill and taking into acocunt recent delays in NVC process (checks the thread August 2014 NVC filers), 7-8 months will be just right from approval to the interview.

I do not think you will be flagged or hindered at NVC stage, I have seen VJ-ers being past NVC stage while still subject to 2 year hrr. NVC does not care about your 2 year requirement, the consultate does. If you look at the guide for CR-1 process, nowhere does it ask for copies of your visas or about 2 year home residency, NVC will not even know your situation and frankly, will not even care. But, that's my opinion and as I said before, I talked to way too many lawyers to get this sorted out, but I may be wrong.

So can we ask the relevant embassy (US embassy in our home country) about it? And see what they say. You are right, NVC does not ask for the copies of passports, but now a days all the information in stored in computer databases, and I am sure they have access to the previous travels of a beneficiary of CR-1 visa. Its just the matter of if they check for the fulfillment of 2 year home residency requirement or not.

So what did the earlier VJ-ers have done? The ones you speak of in your response above. I am really interested to see how the process is supposed to be ideally.

[grad_student 11]

Plus, is there any way we can communicate with someone above Tier 1 consultants at DOS, the ones who make decision on our cases?

[StrawberryKiss 170]

I am waiting for NOA 2, it is already outside of normal processing time, so I have no idea when it will be approved. I also have only 8 months left of my requirement to fulfill and taking into acocunt recent delays in NVC process (checks the thread August 2014 NVC filers), 7-8 months will be just right from approval to the interview.

I do not think you will be flagged or hindered at NVC stage, I have seen VJ-ers being past NVC stage while still subject to 2 year hrr. NVC does not care about your 2 year requirement, the consultate does. If you look at the guide for CR-1 process, nowhere does it ask for copies of your visas or about 2 year home residency, NVC will not even know your situation and frankly, will not even care. But, that's my opinion and as I said before, I talked to way too many lawyers to get this sorted out, but I may be wrong.

Well, when you fill out the online DS-260 (Immigrant Visa Application) in your last stage at NVC, the form asks if you have ever received a US visa and you have to enter your visa type (J1 - red flag) and former visa number. And towards the end of the form, you are asked about certain immigration conditions, with one of them concerning the successful fulfillment of the 2 year home residency. So when your IV documents and file are reviewed by NVC, they definitely know about your situation and I wouldn't lie to them about anything. They do care and will find out.

[Darnell 8,478]

OP - maybe some useful info for you?

the 2 year HRR is evaluated on interview day at the IV Unit.

So, between you leaving the USA, and interview day, plan for those 2 years ...

inbetween, you have no control at USCIS for I-130 approval , rather, the duration o time the casefile is in USCIS system, but

you two do have control over time, timing, calendar at NVC for the VISA application, so plan accordingly.

[grad_student 11]

Well, when you fill out the online DS-260 (Immigrant Visa Application) in your last stage at NVC, the form asks if you have ever received a US visa and you have to enter your visa type (J1 - red flag) and former visa number. And towards the end of the form, you are asked about certain immigration conditions, with one of them concerning the successful fulfillment of the 2 year home residency. So when your IV documents and file are reviewed by NVC, they definitely know about your situation and I wouldn't lie to them about anything. They do care and will find out.

Yes, I saw that last night after posting my last post on this thread. I am not planing on misstating any facts no matter what. Thanks for pointing it out though.

[grad_student 11]

OP - maybe some useful info for you?

the 2 year HRR is evaluated on interview day at the IV Unit.

So, between you leaving the USA, and interview day, plan for those 2 years ...

inbetween, you have no control at USCIS for I-130 approval , rather, the duration o time the casefile is in USCIS system, but

you two do have control over time, timing, calendar at NVC for the VISA application, so plan accordingly.

Yes, this is what I am thinking of doing lately. I appreciate your concern about my situation. Do you know what would happen if my 2 year home residency requirement is not fulfilled on the day of my interview at local embassy for Immigration Visa???

[Darnell 8,478]

usually the visa issuance is delayed.

can be a problem, if you not pay attention to time, timing, calendar and schedule,

as

medical exam and police clearance report have a duration of validity on them, you might wind up re-doing this stuff after interview day.

i suggest to 'go slow' at NVC, as NVC gives you two up to 1 year per thing, and there are two things for intake (AOS and IV)