Do I need a J-1 waiver b4 I can file I-485 if I got married while I was on F-1 visa?

[kung2624]

Hi all,

I'm so confused by listening to different people including immigration officers. So, after you read my issue, anybody who knows the answers please let me know!!

Right now, I'm on an F-1 (OPT) visa which is good from July 1st, 2008 to June 30, 2009. I just got married with a U.S. citizen on May 30, 2008. I was a student (F-1 visa) from May 2006 to May 2008. I used to have a J-1 waiver, which made me subject to the 2 year HRR, from March 2004 to September 2005. I was outside U.S.A. only from October 2005 to April 2006.

I need to apply for a green card as soon as possible but I'm not sure if I'm still subject to the 2 year rule Home Residency Requirement or I need a J-1 waiver before applying for a green card.

For my understanding, I thought that I need to have a J-1 waiver first before I could file I-485. However, today I went to the local immigration office again and it was different than other times since I got to talk to different immigration officer. I used to call and go to the local immigration office and they told me the same thing that I need a J-1 waiver before I can apply for a green card. However, today the immigration officer told me that I don't need a J-1 waiver because now I'm on F-1 visa and I got married under F-1 visa and my J-1 visa expired since September 2005.

Anyway, I filed DS-3035 to get a J-1 waiver with Department of State while I was on F-1 visa since August 2007. The USCIS made the final decision that they approved me the J-1 waiver since May 13, 2008. However, I did move twice since I filed DS-3035 and did not inform Department of State and USCIS. I just knew that the post office will not forward any mails from the immigration. That's why I have never received any approval notice of my J-1 waiver until now. The last thing I heard about filing for a J-1 waiver was that I received "favorable recommendation" from Department of State in May2008. However, I just did the "change of address" online at the USCIS website in June 2008.

So, please please please!
Anybody knows whether I need to have a J-1 waiver before I can apply for a green card or file I-485.

Thanks Thanks Thanks!

[superTD]

Originally Posted by kung2624

So, please please please!
Anybody knows whether I need to have a J-1 waiver before I can apply for a green card or file I-485.

Thanks Thanks Thanks!

I understand your frustration, but very few people here have the same case as you. From my understanding, you must have the J-1 waiver when you file I-485. Here is why: On I-485 form, Part 3 question 12, it asks: Have you ever been a J nonimmigrant exchange visitor who was subject to the two-year foreign residence requirement and have not yet complied with that requirement or obtained a waiver? Also, on the instructions for completing I-485, under secition "Who Is Not Eligible to Adjust Status", 8. You are or were a J-1 or J-2 exchange visitor and are subject to the two-year foreign residence requirement and you have not complied with or been granted a waiver of the requirement; Since you were a J-1 exchange visitor, it doesn't matter when, as long as you had J visa before, you must include the waiver document with your I-485 application. Since you already granted a waiver, you should contact USCIS to obtain a copy of the waiver.
This is just my understanding of waiver. See if other people have other better suggestions for you.

[kung2624]

Thank you for your recommendation, superTD.
Yes, I had believed that I need a J-1 waiver before I can apply for an immigrant visa including green card. However, I just got confused by only 1 immigration officer who told me that I don't need the J-1 waiver coz my J-1 visa expired already. Anyway, I just mailed form I-824 with $340 fee (again) just to have a copy of my J-1 waiver approval notice last week. However, I called the immigration 1-800 number before and they told me that I might have to wait for 9 months until I get that copy. So, I'm wondering if I could apply for a green card while my case for J-1 waiver copy is pending. Anybody knows or has experience about this?
THANK YOU!!!

[LucyMO]

you must have a waiver (or at least a favorable recommendation in a case of a no-objection waiver) before you can file I-485. If you have a copy of your favorable recommendation, you can apply for AOS. You will have to produce your waiver at the interview. My waiver was in the USCIS system anyway. I'd call your original Service Center and inquire about your waiver. Make them find you by your last name.

However, today the immigration officer told me that I don't need a J-1 waiver because now I'm on F-1 visa and I got married under F-1 visa and my J-1 visa expired since September 2005.

he is mistaken.

[kung2624]

Thank you, LucyMO! Did you mean that you also didn't have a J-1 waiver while you filed I-485? If so, did you finally get a green card?

Yes, I planned to attach No Objection letter and Favorable Recommendation to I-485 and a statement explaining about my J-1 visas. Like I said, I already filed I-824 in order to get a duplicate of approval notice but it's still pending. So, I would like to file for a green card soon even before I received the copy of J-1 waiver. However, I'm afraid that the immigration will deny my green card. I'm wondering if the immigration will deny or hold my case when it finds out that I don't have a hard copy of J-1 waiver (but it's approved in the immigration system). What I'm worried is that the immigration will deny my case and then I will have to file for a green card and pay fees again. Does anyone know about this?

I did call the immigration a few times to ask about the J-1 waiver. They made the request for me to get a J-1 waiver again but they said if I don't get it, I will have to file for I-824. Then, I have been waiting and waiting until I called them again. They knew that I called them before, so they said they couldn't do anything and told me that "I HAVE TO WAIT". They couldn't even tell me for how long I gotta wait. Coz I need to know that in order to file I-824 in time. Anyway, I did file I-824 but it's pending.

Thanks!!!

[superTD]

Beside No Objection letter, Favorable Recommendation, and a statement explaining about my J-1 visa, also attach a copy of the NOA of I-824, that way, at least they know you requested the approval notice of J-1 waiver.

[LucyMO]

Originally Posted by kung2624

Thank you, LucyMO! Did you mean that you also didn't have a J-1 waiver while you filed I-485? If so, did you finally get a green card?

yes, I applied for AOS with only a favorable recommendation. However, I had a notice of receipt for I-612 when I filed. I didn't mark 'yes' or 'no' in that line on I-485, but wrote "see attached" next to it. In the cover letter I explained that the waiver is pending. A couple of months later I got the waiver, so I sent a copy to the USCIS. Got my GC in 2005.

Yes, I planned to attach No Objection letter and Favorable Recommendation to I-485 and a statement explaining about my J-1 visas.

Don't need a copy of no-objection letter. They can't do anything with it.

I'm wondering if the immigration will deny or hold my case when it finds out that I don't have a hard copy of J-1 waiver (but it's approved in the immigration system).

if it's approved in the system, but you dont' have a hard copy, they wouldn't ordinarily hold it against you.

I did call the immigration a few times to ask about the J-1 waiver.

do not talk to the clerk. Talk to the immigration officer, and make them search by your name and A# if any.

[kung2624]

Thank you y'all for all the suggestions! Besides these, I wouldn't know what to do.

I'll have everything filed with the green card application ASAP.