Coplex Situation : Your Suggestion Highly Appreciated.

[mmkumar]

Hello,

I work in software industry and my wife will be joining residency this June or July. I am on H1 Visa and my 6 years will be completed in Oct 2005 . My wife is on the H4 and she still has two and half years on "H" visa. My wife has matched for residency in USA. Now that she has only 2.5 years, can she take H1 visa for Residency or would you suggest to take J1 visa?

Our main aim is to stay together for the most of our time without jeopardizing each others carriers. We need to know what we should do to achevie this? Here are some of the ideas that we have in our mind but needs your input.
Option 1
If my wife takes J1 visa for residency and I change to J2 visa before my visa expires .
Here is what we need to know about this option.
a) Will the Immigration services allow me to stay in J2 visa after finishing my H1 visa?
b) Can I apply for H1 visa back after finishing my hibernating period of 1 year with out going back to my home country?
c) Can I work here on J2 Visa?

Option 2
If my wife takes H1 visa for residency, I will have to go back to India after I finish my visa and then come back after an year on a new H1.
Some questions for this option
a) As my wife is already here for 3.5 years on H visa, Will her residency years on H1 also count? If it counts, she can not even complete here residency.
b) If the resident years do not count in H visa, Will it be easy to apply for green card for my wife after her residency?


Please do let me know if there is option 3 or which option is better for us. I would appreciate if you have any suggestions or more questions regarding this issue so that I can ask my Lawyer.


Thanks in advance for your help

[grands_70]

Hello,
There can be some options for your situation here.

1.J1 visa is not too bad.The advantage being in your situation, that you can work being on J2 unlike H4 where a dependent cannot work.Since you are saying that being together is primary for you.I think this can be an option that you can consider.

2.If you continue to stay on H1 it might be problem for you and your wife as she would have only 2.5 years left on her H1 which would not be sufficient for completion of her Residency and you have to go back to your home country,wait another year and then apply for H1,come back and then apply for GC whose timeframe is very unpredictable.

Hope I answered your questions.

Thanks

[hadron]

H1B OR NOT TO BE
H1B OR NOT TO BE
H1B OR NOT TO BE
H1B OR NOT TO BE


Option 1
> If my wife takes J1 visa for residency and I change
> to J2 visa before my visa expires .

Try to avoid the physicians J1 at almost any price. A while ago I recommended to someone in the same situation to get his head examined before they sign the J1 paperwork. I got chewed out for this by some of the more sensitive souls on this BB, so I won't recommend it again ;-)))

> a) Will the Immigration services allow me to stay
> in J2 visa after finishing my H1 visa?

I know you can be here on B1/B2 and F1 during that time, but it DOES NOT count towards the H1 home time. Don't know whether they would allow you to work on a J2 if you are past your allowable H1 time.

> b) Can I apply for H1 visa back after finishing
> my hibernating period of 1 year with out going
> back to my home country?

Only if a goverment agency from your home country or your home countries military sends you on an assignment to the US during that time.

> c) Can I work here on J2 Visa?

You can work on a J2, but there are limits on the amount of money you are allowed to make. The J1 stipend has to be the main source of income.

> If my wife takes H1 visa for residency, I will have
> to go back to India after I finish my visa and then
> come back after an year on a new H1.

If you are willing to do the 1 year separation thing, this is definitely the better option. Do you have a labor cert pending at this time ? If yes, you could get 7th year extension.

> a) As my wife is already here for 3.5 years on H
> visa, Will her residency years on H1 also count?
> If it counts, she can not even complete here residency.

Here is how to get around this. The couple of months you are still here, you find an employer willing to file a labor cert for YOU. After the 18months or so that you are back home (bc of your frequent trips to the US on B1/B2), you return on a fresh H1b. You get the I140 filed. When your wife is in the second year of her residency, you file I485/I765s for both of you. Once her H1b expires she can switch to I485/EAD status. (or you can get an immigrant visa through consular filing before that).

> b) If the resident years do not count in H visa,
> Will it be easy to apply for green card for my wife
> after her residency?

For her as a physician it is infinitely harder to get a GC by her own merits as it is for you. It is a perverted system, but that is how it is.

My 5 cents:
- Don't tell the residency program that she has only
- 2.5years of H1b eligibility left.
- Get the H1b for her.
- Worry about the rest later.

If the H1b and green-card plans for you don't work out, she can still change to J1 later on.

A J1 for your wife in your situation would delay your plans to come to the US for good by another 7-9 years. If you manage to get a H1b for her and an immigration case filed for yourself, you both could be permanent residents within 2-3 years.

[mmkumar]

Hadron and Grands_70,

Thank you for the responses.

Just to add more complexity, why not I change to J2 visa for an year and then change back to H1 and then apply for green card for both of us. I am sure that my wife will still have 1 year of her residency til lthen. I will apply for both of us and if we delay it by another 6 months some how, we will get our labour cleared by 1 and half years and then my wife can come out of J1 visa.

Any more suggestions?

[hadron]

DANGER ZONE !!!!

The second, you change to a J2 which is based on your wife beeing a resident, YOU get slapped with a 2 year 'foreign residency requirement' (HRR).

You won't be able to get back on an H1b until:
- you have stayed in your home country for 2 years
- or your wife has obtained a waiver of the HRR by commiting to work in a medically underserved area after she graduates.

[lalalala]

no matter what u do don"t covert to J1 for your own sanity,try to file for your green card later via Perm and hopefully that should ease the situation.
whoever says that J 1 is ok is either darn lucky or does not have a clue to the ground reality of the situation

[grands_70]

Hello

The real problem is not solved whether you are going to be on H1 or J2. the real problem here for you is that your wife has only 2.5 years on H1 and this would not be sufficient for completion of the residency.
Taking up J1 for your wife will atleast have a career and stay in US unlike the incomplete residency at the end of 2.5 years on H1.If you complete your H1 by this oct,you can come after an year on a new H1 and proceed with your career and you wife would also already be in the US.She can always get a waiver on J1 without the requirement to return to your home country.
You should be able to decide at this point whether her residency is more important or GC.If you think her residency is more important then J1 might be an option for her.

Thanks

[mmkumar]

Thank you for all the valuble suggestions.

Here I am trying to find an option like which is better for us ( Wife and self)and to out hardluck, my wife got matched to the residency where they only process J1 visas ( results known today).

We are happy that she got in to residency in first place but sad that she had to apply for J1 visas.

Now that my wife is left with only one ( worst nightmare) option, I will go back to India and apply for New H1 after an year and come back apply for GC.

[hadron]

I am not saying that a J1 can't be a reasonable choice in certain situations. If you had the chance to do general surgery on J1 vs. OB/Gyn in H1b, it might be a worthwhile option to go for the J1 ordeal.

But for something like peds, IM or FP, taking a J1 is selling yourself under price.

> and to out hardluck, my wife got matched to the residency where
> they only process J1 visas ( results known today).

Play hardball, say you cannot under any circumstances accept a J1. They will squeal, but their desire to get a warm body to take call come july 1st will get them to sign off on the H1b paperwork. If they don't: too bad. There is allways another chance for a residency.

> We are happy that she got in to residency in first place but sad that
> she had to apply for J1 visas.

Think long and hard about that decision. You don't have to do that. In your typical scenario (IT guy and doctor wife), taking a J1 is a real problem. Main reason beeing that it is fairly easy for IT guys to get a GC, and very very difficult for physicians.

> Now that my wife is left with only one ( worst nightmare) option,
> I will go back to India and apply for New H1 after an year and come
> back apply for

Consider going back to you home country in May. that way, both of you can come back on H1b's next july without any time constraint considerations.

If she was competitive enough to get a position this year, she won't have a problem next year either.

[mmkumar]

She got residency for peds.. Yes I will ask her to be strong in her decision and ask the hospital to process for H1. If hospital is so adament in giving the H1, then we will need to bend because, she completed her Bachelor's degree 5 years ago and I headed that the chances will be less if there is more gap between the degrees. So she is worried.

How long will it take to get a J1 visa or H1 visa in current situation for Residency applicants? Can any one give me ballpark estimate?

With all your suggestions and twists, I have acquired some of knowledge J1 and H1 Visas. I will consider all the points that you all had given me and consult a lawyer. Any suggestions on which lawyer, who will have good knowledge on such kind of issues? Preferrably in NY and NJ area...

[hadron]

Do what you think is right.

In primary care specialties, nobody really cares how old you are and how far you are out of medschool.
If both of you went back to 're-charge' your H1 eligibility, she could take up a job in the medical sector and diffuse the problem with beeing out of the job further.

J1 takes 4-6 weeks at ECFMG (pay by credit card on the OASIS website, it is faster than a check). They issue form DS2091.

Then it depends. If you file for change of status, it will take a while (talk to your lawyer, I am not sure but you might be able to start even before the COS is through). If you go back an get a visa at the consulate it depends on the respective consulate.

H1 takes 4 weeks with premium processing ($1000 extra). In regular filing it will take 3-6 months depending on the processing center.

[mmkumar]

Thanks for the suggestions Hadron,grands_70 and lalala..

My wife's hospital started processing H1 from last year, which is a good news. They told that they can do both H1 or J1. Now that she has only 2.5 years on her H visa, I will go back to India ASAP and recharge my H1 and then apply GC for both of us through PERM. We hope that we could get EAD by then and she could continue on it..

[hadron]

Sounds like a good plan. Again, don't bring up the time limitation issue if they don't catch it. Bother about it when it becomes time.

If you can deal with the long distance relationship, going back to recharge your H1b time is a good idea. I know a philipina nurse who spent 5 years waiting for her husband to get his GC.

[sunandi]

I was in the same situation few years ago. My wife took a J-1 eventhough everybody advising against it. It is like a gamble. After residency she tried for a waiver job in NewYork. It got rejected. She immediately got a fellowship for a year. She tried again for a waiver job last year and got it. she was persistant and optimistic about getting a waiver job. Finally she got it. All of her fellow residents ( about 4 of them) in J-1 got a waiver job. If you need any more information e-mail me sunandi@lycos.com

[mmkumar]

Thanks for the input guys... I spoke to the Lawyers and he suggested that I could apply for GC processing as I still have some time and my wife can go on 7th year and 8th year extension.

Let me see how this works...

[hadron]

Do you already have an immigration case pending (LC or I140) ? From what I understand, your H1b is about to expire. Your immigration case has to be pending for >1year in order to get 7th year extensions.

[grands_70]

Hello
Hardon is right.Do you have a labor petition pending for more than an year.If so then you can go for 7th year H1 extension.Sometimes lawyers do not have a clue what they are talking about.sometimes their information can be misleading too.

Thanks

[grands_70]

Also I think your spouse might not be able to extend her H1 beyond her 6 years time based on your petition(unless you get an EAD by the time her H1 expires)
you can get some valuable information in "H1 6 years expiring" forum.It can give you details whether your wife will be able to extend her H visa(beyond six years) based on your pending Labor application.If she was on H4 then she can benefit otherwise I doubt it.I am not very sure but you can check it out in the above mentioned forum.

Thanks

[brahmbhat]

I read your situation and find that you think you have visa only until october 05 and your wife has 2.5 years more on h4.How's that possible? As far as I understand, h4 is intimately clubbed to your h1b, and whenever your 6 year finishes, your wife's h4 will finish too.Meaning she does not have 2.5 years, rather 6-7 months until octber 2005. I am not here to scare you or to paint a glooomy picture.I would definitely check this with a knowledgeable lawyer, as I also find that you are been given another wrong advice here about the 7th and 8th year extension, if you start your GC processing now.As far as I know( I am not a lawyer and not an expert either, but I value my five cents, take it or leave it) one can get 7th or 8th or even indefinite extension in one year increments until your GC is issued, ONLY if your Labor certification or Immigrant petition I-140 is pending adjudication,FOR MORE THAN 365 DAYS PRIOR TO YOUR COMPLETING 6 YEARS ON H1B. Given the fact that your 6 year on h1b finishes in 7 months, I do not find you coming under this category.
I believe it is going to be much more suitable and risk free for your wife taking up J1 visa and you staying back in India for i year and coming again in H1b.You do not have to be J2 at all, you could even start your GC processing now,through PERM,and do your I-140 and it will be more than a year by then,you could come on H1b, file for COS/Consular processing when your Priority date becomes current.If you are from india,with the PD regression, you cannot even dream of GC for at least 3.5 years anyway.
BTW, I am physician too, Has no GC, but I know quite a number of my friends who have got waivers from 2year HRR, it is not such a demon as some make it to be.
I would suggest you get a competent lawyer, not your current advisor!
Best of luck and good wishes for your continued stay together and fastest GC processing.

[brahmbhat]

I have to say that I did not see the posts by hadron and gra... today before I posted my last reply.I find that they partially spoke what I said, but is not clear on h4, I still believe that your wife does not have 2.5 years on her h4.
Let me give you an example, suppose your h1b finishes in ocober 05, and your wife is joining you the first time NOW,according to your calculation, you will have to go back to your country in oct'05, but she can stay for 6 years from now on her h4??. IMPOSSIBLE. I think CIS people are not very good in maths, but are not all of them are bad in arjthmetics and logic.
Check it out my friend,many lawyers are worth not only 0 pennies, but can cost you a whole great deal.

[hadron]

His wife has a valid non-immigrant status (H4) at this time and she has a willing employer to sponsor her for her own H1b. So, in July she will be able to file COS to h1b. But as her H4 time counts towards the 6 year limit, she will have to find some way to get either a 7th year extension or an EAD before the 2.5 years are up.
If after 2.5 years there is absolutely no way to get either an EAD through her husband or a 7th year extension based on her own LC, she can still sell her soul to the the devil (J1) or take a leave of absence until her papers come through.

Repeat with me:
H1B OR NOT TO BE
H1B OR NOT TO BE
......

[mmkumar]

Hello Guys,
Sorry for delayed response
I have filed for Labor Certificate yesterday i..e March 24th 2005. I still have 13 months on my H1, if I consider my stay in India for 7 months during this 5.5 years. I got to know this after talking to Lawyer on Monday. In total I have around 13 months for my H1 visa to Expire. So I have applied for LC. As I have applied for LC before my 1 year, I think I am eligible for my 7th year extn.

My wife will convert to H1 first and will work for 2.5 years on H1 and When I am applying for I485 and I140, then I can include my wife name for adjustment of Status.

Will I be considered under EB2 or EB3. I have computer science Bachelors degree with 8 years of Experience. As per the Lawyer, I will be considered as EB3 because I do not have Master's degree.

It seems that I can only apply I140 and I485 together if I am only on EB2 but not on EB3. I am not sure what this means for Now.

I am taking a big gamble at this point, As Grands_70 mentioned below, I should have an EAD in another 2.5 years. Will there be any chance for getting me EAD in current situation.

Hadron, I will be applying H1 only for my wife and will not got for J1.

[mmkumar]

brahmbhat, My wife will be taking H1 and as she completed 3.5 years, I think she can stay for another 2.5 years on H1.

[mithya]

Hello Guys,
Sorry for delayed response
I have filed for Labor Certificate yesterday i..e March 24th 2005. I still have 13 months on my H1, if I consider my stay in India for 7 months during this 5.5 years. I got to know this after talking to Lawyer on Monday. In total I have around 13 months for my H1 visa to Expire. So I have applied for LC. As I have applied for LC before my 1 year, I think I am eligible for my 7th year extn.

My wife will convert to H1 first and will work for 2.5 years on H1 and When I am applying for I485 and I140, then I can include my wife name for adjustment of Status.

Will I be considered under EB2 or EB3. I have computer science Bachelors degree with 8 years of Experience. As per the Lawyer, I will be considered as EB3 because I do not have Master's degree.

It seems that I can only apply I140 and I485 together if I am only on EB2 but not on EB3. I am not sure what this means for Now.

I am taking a big gamble at this point, As Grands_70 mentioned below, I should have an EAD in another 2.5 years. Will there be any chance for getting me EAD in current situation.

Hadron, I will be applying H1 only for my wife and will not got for J1.

if you applied on 24th March for labor, most likely it will go under PERM (which starts Monday)..what that may mean for you if you are in a software related job is most likely it will be EB3, unless your lawyer has made a case of business neccesity etc (which is likely to trigger off an audit)..though 8 years + a Bachelors traditionally would have been in EB2, but under PERM there seem to be some changes specially for software related jobs...
If you are indeed under EB3, you hopefully will get your labor cleared under PERM soon( they say 45-60 days after they receive the application, meaning all ads requirement etc is compelted by then). YOu will be able to file for I 140 BUT EB3 has retrogressed to Apr 2001 (ie only with those with priority dates prior to Arp 2001 can apply for 485). So you likely have to wait more than a year-18 months atleast before you can file your 485 to get the EAD. Other option is consular processing.. I guess the 2.5 years seems right at this time for EAD in your case

[hadron]

Assuming that the paid legal advice you received, this sounds like a reasonable way to proceed.

Good Luck.
(and again, don't tell the hospital about the time limitation. otherwise it is bye bye H1b)