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"2 Year Rule Does NOT Apply" (J1 to F1 to H1B case)

Discussion in 'J-1 Home Residency Requirement' started by Pinak Lonkar, Jan 12, 2016.

  1. Pinak Lonkar

    Pinak Lonkar New Member

    Hi,

    1) I spent 2 months in a summer camp (CCUSA) in 2005 on a 3-month duration J1 VISA stamped "2 year rule does not apply". The related DS-2019 endorsement has no boxes checked.

    2) I left USA and lived in Russia (home country) for 14 months after J1. I did not over-stay my J1 VISA.

    3) I returned to USA on F1 VISA in 2007 and did my masters and then obtained a Ph.D.

    4) I am now on a full time teaching job starting Fall 2015 on OPT.

    5) The school's lawyer is about to file my H1B "change of status" petition. But they are saying that the J-1 VISA stamp annotation is wrong(!) and the 2 year home residency rule still applies(!). They are still going to file using premium, but they firmly believe that the 2 year rule applies. I am absolutely puzzled by this.

    My question is - what is prompting the lawyer to make such a statement when the VISA stamp clearly says otherwise? Also, there was no FULLBRIGHT or FLEX involved in my J1. It was simply a summer camp where I worked in the kitchen. I paid for the program. If USCIS can just mark these stamps and VISAs wrong, and we should not trust USCIS, then exactly what do we trust??

    Unless absolutely required, I do not want to go through the advisory opinion / waiver as I only have time until August 2016 when my OPT runs out. I read somewhere that in such situation, USCIS will still grant the change-of-status to H1B as long as I remain in USA and for stamping purposes, there may be an issue.

    Any suggestions would be very welcome. It is very worrisome.
     
  2. Veggie3

    Veggie3 Registered Users (C)

    Did you spend any time in Russia after 2007? Any day spent there would count toward the 730 days mark.

    I completed the 2-year HRR prior to my COS to H1-B. From my experience, USCIS didn't even look closely at that stage, but rather during my Green Card process.

    According to the State Department website, by the way, it only takes 4-6 weeks to receive an answer for an advisory opinion.

    http://travel.state.gov/content/visas/en/general/advisory-opinions.html


    Good luck.
     
  3. Pinak Lonkar

    Pinak Lonkar New Member

    Many thanks for your answer. I understand what you mean by spending time in Russia after 2007. Yes, pretty much any time spent in Russia after my J1 would have counted toward the 2 Year rule. I mentioned above that so far I have spent 14 months in Russia and I cannot spend any more because I only have OPT until August 2016 and I will lose my job if I tell them now I have to sit in Russia for 10 months more.

    But my questions really are:

    1) Why should I have to go back to Russia, when the VISA stamp and DS-2019 exempt me explicitly from the 2 year rule 212(e)?

    2) Why are the lawyers trying to tell me otherwise?

    Your case is quite different, you did spend 2 years in your home country before COS to H1B.

    3) Were you explicitly subject to the 2 year rule to begin with from your DS-2019 or J1 stamp?

    4) How do you know that USCIS ignored or considered that J1 HRR thing in your case?
     
  4. Pinak Lonkar

    Pinak Lonkar New Member

  5. Veggie3

    Veggie3 Registered Users (C)

    Regarding question #1 - I think you are exempted, but I'm hardly an expert.

    3. I came to the U.S. on a Fulbright fellowship, so both my J-1 stamp and DS-2019 were marked with the 2-year requirement.

    4. After completing the 2 years, I returned to the U.S. on a different J-1 visa (that had no home residency requirement). When I switched to another university, it sponsored me for an H-1B visa with premium processing. I sent the lawyer all the docs, but forgot to attach proof that I completed the home residency requirement. When I realized it (about a week later) and sent it, the lawyer's office said my application has already been approved... Last year I submitted the I-485 paperwork, and the attorney's office organized all the documents properly, as they mentioned USCIS looks closely at that (my day count was 738, so it was close to the minimum). I attached boarding passes, passport stamps, and an official transcript of entry/exit from my home country.

    Good luck.
     
  6. Pinak Lonkar

    Pinak Lonkar New Member

    3. Your old J1 on Full-Bright almost does not matter here, because you served the 2 year requirement for that, so that's a wash.

    4. However, the second J1 status you came to USA was converted to H1B status by your "another" University. As you are saying, USCIS could have asked for the second J1 VISA stamp (or even the first ever J1 VISA stamp) to validate if you are/aren't exempt from the 2 year rule. But they didn't do any of that.

    Your response 4. gives me some hope. I still don't understand why my school's lawyer is saying what she is saying about the stamp being "wrong". Yes, there are some posts on the internet saying that the J1 VISA stamp cannot always be reliable, but mostly they talk about the reverse case (people thinking they have been subjected to 2 year rule when they should not have). I just don't want to open up another can of worms by getting an advisory opinion; it may be asking for unnecessary trouble in case they admit that it was a mistake (however unfair it is to me) made almost 10 years ago, and make me "subject" to 2 year rule.

    I am going to wait for the F1 to H1B "change-of-status" response from USCIS and take the next steps if I get a request for evidence (going for advisory opinion + waiver), etc.

    For other people (J1 to F1 to H1) in a similar situation, I will update the thread in March / April 2016.

    Thank you.
     
    Last edited: Jan 18, 2016
  7. Veggie3

    Veggie3 Registered Users (C)

    Just to clarify about #4: of course USCIS asked for my status at the time, and they did get a copy of my second J-1 stamp & DS-2019. What they did NOT ask for was any evidence that I completed the 2YHRR.

    Keep in mind that DOS is responsible for handling the home residency requirement and determination whether it was completed or not, and waiver policies. USCIS follows their guidelines, but it's quite possible their officers don't always pay the closest attention when it comes to H-1B/L visas. At the Green Card stage they're much stricter.
     
  8. Pinak Lonkar

    Pinak Lonkar New Member

    That's what I am saying - your second J1 did not even have the 2 year HRR, so USCIS at the time of COS to H1b had no reason to ask if you served HRR or not (why would they?). This tells us that USCIS "believed" DOS' decision that was stamped on your second J1 VISA. Had they come back with RFE asking you to re-confirm DOS' decision, then you'd have had to get an advisory opinion. And that's my "concern". That's why I said, this gesture by USCIS gives me hope.

    You had already served your first J1 HRR, and your travel history may have already given it away to them. There was no reason to show anything to USCIS for this first J1 anyway. That's why I called it a wash.

    For your green card, let's say your first J1 didn't exist at all, and you had come to USA for the first time in your life using what is your second J1 VISA with no HRR, it almost seems like they behaved as if this were the case, before approving your 485 AOS.
     
  9. Rob Hatfield

    Rob Hatfield New Member

    I had a J-1 that was marked "not subject to 2-yr home residency requirement". I maxed it out at 5yrs and transferred to a H1-B as my employer still wanted me to stay and work. I submitted an adjustment of status and 3 months later it was all approved and now I am on a H1-B with no problems. From what I understand if the J-1 is funded by the US taxpayer or is intended to be an exchange of knowledge then the 2yr requirement kicks in.
    I did see an immigration lawyer on a separate matter before I filed for AOS and he was surprised to see it not stamped as 'required' and suggested to me that i get it checked out. I never did and the AOS was fine. Maybe they are just ultra cautious (or want more business).

    I don't know the specifics of your case, but that is how mine worked out....
     
    Last edited: Jan 26, 2016
  10. Zarajon

    Zarajon New Member

    Please update us. I am in the same situation.
     
  11. Pinak Lonkar

    Pinak Lonkar New Member

    Update: As you probably read above, my J1 VISA came with the "NOT subject to the 2 yr HRR"....and thankfully the H1-B petition was approved. We had applied under premium processing. I will get the H1 VISA stamped when I leave USA next time to be able to return to USA. I'll await the green card stages now for the next year or so, and update this thread if this J1 situation ever comes back to trouble me, hopefully not. Hope this helps.
     
  12. Zarajon

    Zarajon New Member

    Thank you for your prompt response. When r u planning to leave USA and come back? I want to know if you get H1 visa stamp in the Embassy to enter U.S.? I am also planning to leave U.S. and enter U.S. with H1-B visa and I was wondering if my J-1 visa creates trouble to get H1-B visa back home and enter U.S.? Hope everything goes smoothly for you and for others
     
  13. Pinak Lonkar

    Pinak Lonkar New Member

    The first question is loaded. Please search the Internet USCIS resource for the VISA stamping process. In short, you'll need a completed form DS160, documents, USA VISA size photos, your I-797, employment pay stubs for verification, all passports you have, etc. and a completed profile on their website to determine if you need an interview or a Dropbox. The interview and stamping take place in the consulate. Dropbox may happen at other locations.

    In my opinion, once the petition for any VISA is approved with a form I-797 in your hands, it is an approval and almost never should get rejected outside of USA for a VISA stamp. The whole VISA stamping process in itself is nothing but a cash grab and an administrative overhead created on purpose. A formality in majority of cases.
     

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