I wanted to share my story in hopes to help someone else out, so that they will not have to go through the frustration we did.
Some background. I am a US citizen and my wife is from mainland china. She entered the US on a J-2. She later changed to F1 to do some studies, got divorced and we met and married. She obtained OPT to begin work and was later issued an H1B visa (yes it seems she should not have been able to get it, but who am I to argue). As we started down the green card path we discovered the waiver issue.
We approached very competent and well known lawyer. He recommended going down the path of No-Objection to obtain the waiver. We went through all the motions and filling and then approached the Chinese embassy. Turns out that they will not issue letters of no objection for J-2 cases. Thus this approach, for us, was a dead end. This lawyer next proposed a hardship approach. This is when red flags went up for me. Having studied the criteria for such a motion, I knew the chance of success was remote.
I begun my search for an alternative and was led to what a lot of lawyers consider the foremost expert on J related law, specifically hardship cases. After a brief conversation he stated the paths we had chose were NOT the correct ways to get this done. He informed us that there is a special provision to do this using the Interested Government Agency Approach. A J2 holder in the case of divorce can request that the Department of State act as the interested government agency and recommend the waiver. It was very clear in short order; this lawyer knew his stuff so we elected to hire him on for this task.
We filed the DS-3035 and associated papers and received a reply in approximately 3 wks, which was around March 1. There was some instruction and other forms, which we replied with and was indicated received April 4. We estimated 2 to 4 months for a reply. The real shocker was 6 days later we discovered 'Favorable Recommendation" from the state department. This all but guarantees the waiver. (Note: sorry about the vagueness of 'forms', but our lawyer handled it all for us)
Not only that, but my lawyer says we can go ahead with the green card filing even before we receive the I-797 as there was a special policy in 1998 that allows this. We figure we will have our green card application in the system in 2 to 3 weeks.
I realize that some off you may have surpassed this hurdle in various ways, but I am a believer that this is the quickest way to accomplish this and I am more than pleased with the job our lawyer did.
I hope this helps someone out there that is struggling with this.
I will update this as we move thought the next stage.