J-1 Visa FAQs

Citizenship for Employees of Consulting Companies who have Projects in Different Cities after Green Card

Authored on: Tue, 12/04/2018 - 02:25

Question

My Question is after getting green card and leaving consulting employer after 14 months, when person applies for US Citizenship (8 years after getting green card) can USCIS ( knowing that sponsoring company was consulting) asks for client letter, contracts ( like H-1B documentation ) for the period when employee was working with GC employer( after GC approved) ?

Answer

Watch the Video on this FAQ:

Citizenship for employees of consulting companies

who have projects in different cities after green card

Video Transcript

First of all, remember the laws has changed since 2017. Now supplement J has become an issue. Previously, when you did a AC21 shift of jobs, there were no filings required. So in older cases even if you don't join the employer, chances are that you are in a pretty good shape. Another thing that I always consider to be important and it often doesn't come up is your state of mind. Green card is based upon an intention of an employee to join an employer on a permanent full time basis either before or after the approval of the green card. I do want you to take a consultation and I want you to spend some time with a lawyer to go over your situation and make sure there's nothing else that's going to be bothersome. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

AC21, changing jobs, when to file Supplement J

Authored on: Fri, 03/17/2017 - 03:49

Question

My EB2 priority date is June 2009. I filed for my I 485 in 2012 and since 2013 I have EAD and have been maintaining H1b status.
In 2014 I changed my job from the original employer who started my GC process (with whom I have I 140).
I sent AC21 when in 2016 I got the standard RFE to produce medical records and employment proof (since then the priority date had retrogressed again), and also have H-1B with my new employer. I have not started the new GC file with a new employer.
Should I file supplement J now, proactively, or should I wait for another RFE from USCIS when my priority date becomes current in the future, to file for supplement J?

Answer

Watch the Video on this FAQ: AC21, changing jobs and when to file Supplement J

Video Transcript:

There is a graph on this about when you must file Supplement J on our web site and what happens after you file. 

As for your question, the answer is No. You will have to file Supplement J when the case is still pending, it's optional if you want to file you can but if you change employers next time and if there is an RFE you must file a Supplement J. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

J-1 Physician applying for following to join after waiver

Authored on: Wed, 03/01/2017 - 23:20

Question

I am a physician currently in H-1B undergoing 3 years of J-1 waiver program which is set to be completed on July end of this year. My husband got his greencard through E-B2 category (rest of the world) in early 2013 When I was still in J-1. My name was included in I-140 but could not file I-485 due to my J-1 visa. I have been married since 2006 and came to the US initially on H-4 visa before getting residency in J-1 visa. Is there a possibility of filing my I-485 directly without waiting for the long I-130 approval process? Or is there any exceptions for a situation like mine such that spouse happened to be in J1 and could not apply for a change of status at the time primary applicant applied for I-485?

Answer

Watch Video on this FAQ: J-1 Physician applying for following to join after waiver

Video Transcript:

Yes, if you are in the USA in legal status and his priority date through which he got his green card is still current you should be able to file your I-485 directly. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

J-2 or J-1 with 212(e) HRR converting to F-1 student

Authored on: Mon, 10/26/2015 - 04:37

Question

I want to pursue MS Degree from US and presently I am living in the US on J-2 visa. My wife is working as a Post doctoral Fellow here on J-1 visa. We both are subject to two years Home Residency Requirement.
My concern is that how can I change my visa status from J-2 to F-1. Do I need to get a waiver before applying -F1 visa?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/ZvUVIGTM-Kk?t=520

FAQ Transcript: 

Answer is yes. They can't convert within the United States, but they can go outside of USA and try to get F-1 stamped and come back. That does not  get rid of  two year residency visa. However, remember two year residency visa requirement only says this:  if you have J-1 or a J-2  which is subject to the 212 (e) HRR, you cannot convert  to H, L or Green Card, but you can  if you want to change to F-1 visa but not within the United States as far as I remember. It does not allow the change of status also. So you can always get a visa stamping done and you can do it without the waiver, F-1 does not require waiver. However if down the line you decide to convert to H-1, your J-1 holding spouse either must have received the waiver or a home residency a fulfillment of 2 year residence abroad to the home country.

Can a J-2 holder get a HRR 212(e) waiver without J-1?

Authored on: Tue, 10/13/2015 - 01:53

Question

My wife is working here in the US on J-1 visa as a Post Doctoral Fellow and She is subject to 2HRR requirement.I came to United States last year on J-2 visa from India and after few month I applied and got the EAD card and now I am also working for XYZ IT company here in the USA and I am subject to two HRR requirement as well. My employer wants to file H-1B visa for me but my wife does not have an offer for H-1B visa so in that case Can I (J-2 visa holder) file a waiver petition independently of the J-1 Principal?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/XAfykYM-cUQ?t=89

FAQ Transcript:

The question asked is can a J-2 holder obtain a waiver of the Home Residency requirement without the J-1 holder being involved and the answer is, the last time I looked into this issue it is a "No".  The exemption was if there was some sort of impossibility associated with the J-1 holder conferring the benefits of a waiver for instance if they were divorced or there was a death of the J-1 spouse. In those cases certainly this was a possiblity. But otherwise you cannot as a J-2 holder obtain a waiver by yourself. Your disqualification for the Home Residency requirement came into being because of the J-1 holders status. So the theroy of the law is that J-1 holder must apply for a waiver.

J-1 Physician in Waiver Job Applying for AOS/1-485

Authored on: Fri, 12/05/2014 - 16:49

Question

I am a physician completing my J-1 waiver ( on H-1B now in US, waiver will finish by June 2015). My wife became a U.S. citizen few months ago and she has filed I-130 for me. If I-130 is approved, do I have to wait till June 2015 to apply for adjustment of status or can I apply sooner ? If I have to wait till June to apply for I-485, will I be able to get EAD right away or will I need to be on H-1 for a while I-485 is accepted ?

Answer

 See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=3YV-qIlAEpI#t=1320

 

FAQ Transcript

The way it works is physicians when they have J-1 they get a waiver job like Conrad 30 program or through veteran's administration any one of these things. They are working on completing their waiver job typically 3 years. So the question is when can I file I-485?  This comes up very frequently in the context of physician, both when they are trying to do EB-1 or National Interest Waiver. In this case applying for his wife.  The answer is you cannot file I-485 until your 3 years of waiver is complete. Even if you file 1 day early your I-485 will be rejected. So until your waiver is complete you cannot file I-485.

Regarding J-1 HRR Waiver

Authored on: Thu, 10/31/2013 - 05:53

Question

An experience from our community reader:

I did not have to go through the grueling J-1 HRR process from India. A matter of fact for your reference, a lot of students coming from India to US on J-1 for internship or completing their last semester are put on J-1 HRR directly without any inquiry into their application at the visa window. This causes a lot of stress to individuals under J-1 HRR and very few know that J-1 HRR Advisory opinion exists. I had been reading a lot of articles and on the USIEF website when I came to know about this and applied to see after 2 months that the J-1 HRR was never applicable to me.

Answer

Rajiv's Response:

Thanks for sharing. People, note, it is a good idea to confirm whether or not you are in fact subject to the HRR. We have been doing that for years in cases where there is a likelihood that you are not subject to HRR. Two typical situations where you may NOT be:

1. No US federal government funding (reinforced by suffix "P" instead of "G" in your program number) and

2. Your specialization is not on the country skills list.

Exhibiting Immigrant Intent

Authored on: Thu, 10/17/2013 - 08:04

Question

I currently have a J-1 (for four more years, no HRR). I am thinking about applying for an EB2-NIW. The question is, if I don't get the EB-2, will I have problems with traveling with my J-1? Can the officers at the airport know that I was denied an EB-2 and thus showed immigration intent?

Answer

Exhibiting immigrant intent CAN be a problem for J-1. It is not certain that you will have a problem, but the potential does exist.

Change in J-1 Status

Authored on: Fri, 08/16/2013 - 03:30

Question

I came to U.S by J-1 visa and now I am married to a U.S citizen.I got married in the first month here and my DS form will expire after 2 months. What will be my status?

Answer

Two concerns:

1. Your J-1 visa must not be subject to the two-year HRR; and

2) You must not have had a pre-conceived intention to get married when you entered the USA.

Both are serious issues. Consult a lawyer please.

Changing from J-1 to O-1

Authored on: Wed, 01/02/2013 - 05:01

Question

Can I change from J-1 to O-1 without meeting the home residency requirement or getting a waiver?

Answer

You can apply for the O-1 category and, upon receipt of the approval notice, you will be required to obtain the O-1 Visa at a U.S. consulate abroad.

Starting a Business on J-2 Visa

Authored on: Wed, 11/28/2012 - 06:36

Question

I will have a J-1 visa when I come to the US, can my spouse on J-2 start a sole proprietorship as consultant? Would he have to get the EAD first? He will work for the same company as he works for now, only as a consultant.

Answer

Under the law (8CFR 21A.2(j)(1) (v) (A)), a J-2 holder may use the earnings to support the J-1 visa holder. The earnings must be used for the “Family's customary recreational and cultural activities and those related travel.”

Two-Year Home Residency Requirement

Authored on: Tue, 11/13/2012 - 06:32

Question

Let’s say that a J-2 visa holder enters the United States as a derivative of a J-1 principal who is subject to the two-year home residency requirement of INA 212(e). Without leaving the United States, she later changes status from J-2 to J-1. The J-1 program in which she participates as the principal is also subject to INA 212(e). Thus, the person is independently subject to INA 212(e) based on two separate programs – her husband’s (as a J-2 derivative) and her own (as a J-1 principal). Please confirm that this person may file a single DS-3035 form that includes all DS-2019s from both programs and receive a single waiver covering both programs.

Answer

In this situation, the applicant’s J-1 waiver does not cover her period in J-2 status. 9 FAM 41.62 states that if an alien is subject to the two-year foreign residence requirement, the spouse and child of that alien are also subject to that requirement. Thus, the individual you have described would need a separate waiver to cover the time that she spent in J-2 status that subjected her to the two-year home residency requirement.Two separate DS-3035 applications would therefore be required in this circumstance.

Exceptional Hardship Waiver

Authored on: Tue, 11/13/2012 - 06:28

Question

What examples has the Department of State (DOS) provided of program and policy considerations other than program funding that might lead to an unfavorable J-1 waiver recommendation, despite a favorable recommendation from USCIS?

Answer

The exceptional hardship waiver is a three-step process. The applicant must first submit an I-612, Application for Waiver of the Foreign Residence Requirement, directly to USCIS. If USCIS determines that there is a possibility that the applicant’s U.S. citizen or legal permanent resident spouse or child may experience hardship if the applicant returns to the home country to fulfill the two-year home residence requirement, USCIS forwards the application to the State Department for a waiver recommendation. In accordance with guidance in 22 CFR 41.63(b)(3)(ii), the Department’s role is to review the program, policy, and foreign relations considerations in the case and make a recommendation to USCIS, which has the final waiver authority in 212(e) cases.

Each waiver application is reviewed on a case-by-case basis and weighed on its individual merits. All relevant factors in the case are considered in the review process. The State Department policies or standards followed in reviewing a waiver application are to weigh the program, policy, and foreign relations considerations in the case. These factors apply across the board in waiver cases. The Department does not comment on the program, policy, and foreign relations considerations relevant to specific waiver cases. The courts have consistently supported DOS’s position on disclosure of analysis in these cases.

Withdrawal of a Pending J‐1 waiver

Authored on: Tue, 11/13/2012 - 06:23

Question

What procedure should a J‐1 waiver applicant follow in requesting withdrawal of a pending J‐1 waiver application?

Answer

A waiver applicant who has a pending waiver application in the State Department’s Waiver Review Division (WRD) should send an email to WRD via FMJvisas@state.gov to request withdrawal of a pending case. WRD updates the applicant’s case file and posts the withdrawal request on its online status checking system on http://travel.state.gov.

Two-year home residency requirement

Authored on: Mon, 01/23/2012 - 22:02

Question

Can I obtain an F-1 if I have a two-year home residency requirement on my earlier J-?

Answer

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

J-1 visa waiver concerns

Authored on: Fri, 11/04/2011 - 04:25

Question

I had come to US in September 2008 for 30 days externship (as short term visiting scholar) on J1 visa. After that I went back to India in October and came again in January 2009 on F1 visa to do PhD in animal science program. My concern is do I need to apply for J1 waiver before joining a job or a post doc here in USA? If yes, how should I go about it?

Answer

The 212(e) can attach to even a short program. Step one, ask DOS for an advisory opinion whether you are subject to the Home Residency Requirement. The detailes are here: http://travel.state.gov/visa/temp/info/info_1288.html

Canadian with J-2 visa

Authored on: Tue, 10/18/2011 - 07:52

Question

I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?

Answer

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

J-1 extension beyond 5 years

Authored on: Wed, 09/21/2011 - 23:41

Question

My J-1 at Cornell Psychology Department expired on Aug 31 2011 after 5 years. Currently I'm spending my grace period. I'm exempt from the 2 years rule. I was wondering if it could be further extended. If not, would it be possible for my department to issue a new DS-2019 (J1) instead? I have only been working here for about a year and have been at a different university before.

Answer

Extension is possible only if the program rules permit it. The worst case scenario in extension or new 2019 as I see it can be only that you have to go get a new via stamp.

I was on J-1 visa

Authored on: Sun, 08/29/2010 - 22:58

Question

I was on J-1 visa for 18 months of training in a dental lab as a dental technician .I got my waiver on my J-1 visa .I came back from USA to India and applied for the F-1 visa in a community college .But I was denied f-1 visa on bases of section 214(b) of immigration (possible immigrant).What can I do next to get back to USA?

Answer

If the consulate is not convinced of your nonimmigrant intent (214(b)), it is extremely difficult to remedy that. Usually, people in that situation should explore options like H-1, L-1, green card - all of which do not require a nonimmigrant intent (intention to remain in USA only for a brief period of time).

File I-485 while J-1 waiver is pending

Authored on: Mon, 03/08/2010 - 07:12

Question

I am currently in the US under the VWP which expires March 15. I was about to apply for a marriage-based GC but I just found out that I am subject to 2-years HRR. I applied for a waiver (no objection). A lawyer told me today that I should still file the I-485 and just leave the question "subject to" blank or check "yes" and add "waiver pending". Is that going to work? I don't want to overstay the VWP. How many days does it usually take to find out that I-485 submission got accepted and I can legally overstay the VWP?

Answer

To the best of my knowledge that information is incorrect. You can file AOS only after the waiver is approved.

J1 overstayed by years, married to a greencard holder

Authored on: Fri, 02/26/2010 - 06:52

Question

I came to US in 2004, overstayed my J1 visa by 3 years and got married to a greencard holder in 2007. My I-130 was approved in 2008 . Is it possible to adjust status when my visa number becomes available. I have read on different sites that I'm not eligible since I have not maintained lawful status during my stay. Are there any loops?

Answer

Unless your spouse becomes a US citizen, nothing can be done as far as I can see. If you had a 2 years HRR, you have bigger problems.