J-1 to F-1 to H-1B

A

adcyprian

Registered Users (C)
Hi, I came to the US as J-1 (with 2 year home residency requirement) for undergraduate studies. I got accepted to the graduate school so right after undergrad school, I went back home, got F-1 visa and came back to the US on F-1 visa for grad school.

After grad school, I did 1 year OPT and then applied for H-1B. H-1B was approved last November (even though I had J-1 before and I didn't fulfill 2 year rule). Now I want to get H-1B visa (for the first time) in Canada and I'm wondering how likely it is that I'll be denied H-1B visa in Canada.

I have a new passport and my I-20s from graduate school don't mention anything about the 2 year rule. Would they be asking about undergraduate I-20s or old J-1 visas?
 
adcyprian said:
Would they be asking about undergraduate I-20s or old J-1 visas?
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You have a problem now. WHen you apply for visa at consulate, you need to fill out DS-156 which asks about the past visa possesion and DS-157 asks about all the education history. If they saw you had J1 before, they will probably ask about 2year HRR.

I think you need waiver, but it may take long. Talk to good lawyer.
 
You commited fraud.

Not to alarm you, but you simply committed fraud.

Eventually this will catch up with you, when you decide to apply for PR you will be asked about the 2 year home residency (There is specific question about that).

My advice and best options for you are the following:

* Do no get a visa across the border (canada as you indicated you may get stuck there).

* If you have to get a visa go back home and apply there (very slim chance)

* Start a waiver process now and wait till it gets approved then you'll be fine (I knew somone who did so and he was fine then).



GotPR? said:
You have a problem now. WHen you apply for visa at consulate, you need to fill out DS-156 which asks about the past visa possesion and DS-157 asks about all the education history. If they saw you had J1 before, they will probably ask about 2year HRR.

I think you need waiver, but it may take long. Talk to good lawyer.
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Well, I don't agree that it's fraud because I didn't really hide anything. I provided all the information asked during switching from J-1 to F-1 to H-1B.

What are the chances that they will check all my past status in the US in Canada though?
 
Actually, if you read the instructions for Form I-129 (H1-B application), it states the following (page 11-12):

--
The following nonimmigrants are not eligible to change
status:

• A J-1 exchange visitor subject to the foreign residence
requirement who has not received a waiver of that
requirement;
---

In other words, did you file I-539 when you filed your I-129? If you did file I-539, you are indeed committing fraud.
 
Like I said I'm not trying to alarm/scare you, we base our feedback on what you wrote.

I also think you knew all along about the J1 and the 2yr HRR (I find it hard you didn't).

The fraud part (I know this is a strong word) comes from the fact that you were not supposed to change status before fulfilling the 2 yr HRR. The USCIS officer who approved your H1 visa has no way of knowing your prior J1, they tend to trust what they are told.

Well if you decide to get the VISA stamped (say at CANADA) and decide to tell them (they may find out, supposedly they have a system that checks your US entry history or so we're told) about your J1 they will simply deny your H1 (or approve it by mistake). If you hide your prior history (Which I think is not wise) they may approve your H1 or find out and then you'll be banned for fraud (Up to 1o years from entering the US).

The bottom line is that your case will catch up with you sooner or later, and the best option is to get it straightened out, as we suggested.

So it is your choice either doing the right thing like we suggested or sleep on it and take a risk.

Good luck,




adcyprian said:
Well, I don't agree that it's fraud because I didn't really hide anything. I provided all the information asked during switching from J-1 to F-1 to H-1B.

What are the chances that they will check all my past status in the US in Canada though?
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Check your H1 petition(I-129) that your employer filed.

Question #4 of Part C specifically asking whether you are subject to 2 year HRR and have no waiver.
If you answered Yes to this question, it might be considered that you have already had misrepresentation on application which lead to the problem.

http://www.uscis.gov/files/form/I-129.pdf
 
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Thanks for the feedback. First of all, I need to clarify that I'm not even sure if 2 year rule applies to me. I was on J-1 and I kind of think that there was 2 year rule on my J-1 but nobody told me anything about . Furthermore, I went back home and switched to F-1 with no problems. I would think that if I was subject to 2 year rule, I wouldn't be able to switch to F-1 back home in the first place?

So I guess the first step is to figure out if I'm subject to this rule. How can I do this?

Secondly, if I'm subject to this rule, what's the best route? Is it wise to apply for the waiver after obtaining the H-1B?
 
Further questions

You say that you were in the US for undergrad with a J-1. In graduate school you switched to F-1. It is possible to switch from J-1 to F-1 without getting a waiver, but not from J-1 to H-1B or green card as well as a few other categories.

Now, since you were here on a J-1 only for undergrad, what made you assume you were subject to the 2 year requirement? I hope you are aware that not all J-1 visas are subject to the rule?

Please take a look at the following items:
1- Your original J-1 visa from your undergrad years: Does it say anything about 212(e)?
2- Your old pink copy of the IAP-66 or DS-2019 (whichever one you have) - on the lower left hand side of the pink copy of the IAP-66 will be a box that the consul would have checked if you were subject.

Note that neither of these are legally binding; it is the department of state that determines whether or not you are subject to the rule. But these two items will give you (and us if you tell us) an indication of your previous status.

Who paid for your undergrad education? Was it a grant from your home government? US agency (such as USAID)? Or was it private funding?

Sorry, I should have asked you these questions earlier.
 
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Sorry, I don't have my old visas or the old IAP-66s with me right now so I can't check what you asked me.

Yes, I was funded by a US agency and that was the reason I thought I was subject to 2 year rule but then again, I was never told anything about this rule.

Given that I'm in the US with H-1B and the possibility that I might be subject to this rule, what are my options right now? My questions from the previous post still apply.

Thanks.
 
Don't get upset, but I honestly think you're pullig our legs...I bet you knew all along that you were subject and planned the F1 then the H1....I knew people who did the same thing... and get caught at the H1 step.

Your VISA stamp should've stated clearly that you are subject to 212(e).

Your case is quite complex, and getting a waiver is very hard (US funding is the hardest waiver cases) but worth trying...

I suggets you take your case to a lawyer and see what he says.

As to the rest of your questions they were adressed in the previous replies.



adcyprian said:
Sorry, I don't have my old visas or the old IAP-66s with me right now so I can't check what you asked me.

Yes, I was funded by a US agency and that was the reason I thought I was subject to 2 year rule but then again, I was never told anything about this rule.

Given that I'm in the US with H-1B and the possibility that I might be subject to this rule, what are my options right now? My questions from the previous post still apply.

Thanks.
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I didn't really plan this way. I was pretty young when I got J-1 (16), and I didn't really think much about 2 year rule and if it applies or not. Once I was done with J-1, I got into graduate school and when I went to the embassy to get student visa, they gave me F-1. Again, I didn't really think much about this either. Then I applied to H-1B just to give it a try and I was thinking that if I was subject to the 2 year rule, they wouldn't let me change to F-1 and even if they did, they wouldn't let me apply for H-1B but they did again. So I'm thinking that I'm either not subject to this rule or I got really lucky. Either way, I'll seek legal help. Thanks for the time.
 
I know someone who also went through the J-1, F-1, H-1 route. He was subject to the 2-year residency requirement for sure. The only difference between your case and his was that he spent a year outside the US (but not in his home country) between his J-1 and F-1. I know for sure he was able to get an H-1 stamp in his passport without any problems. But I can only assume the embassy in his country did not carefully check his previous visa history and he was really lucky. What's even more interesting is that this guy even got a green card lately without fulfilling the 2-year residency!!! How this happened is beyond me. So, the bottomline here is that the immigration officials do make mistakes sometimes and some people have taken advantage of this. Of course, the question is what would happen if the immigration people noticed that they made a mistake at some point. Would they revoke the green card or even the US citizenship of someone who took advantage of their mistake?
 
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USCIS makes tons of mistakes regularly, and usually if you clear the citizenship hurdle they cannot and would not (simply no resource), revoke any thing, unless you're from the special registration conutries and got insome sort of trouble (how likely close to nill).

I know of many cases from J1 to H1 without fulfilling the 2yr HRR. However, most of them got a waiver while on H1 and they were on the clear from there on...

As far as going form J1 to F1 it is quite a shaddy thing and at the edge of legal (discretion of whoever process your paper at UCIS or Embassy) many did it no problems and may cases were rejected, so it depends on who ever processes your paper.

Regarding your friend going from J1 to GC without fulfilling the 2 yr HRR,
he really did get lucky. How long ago was that? it matters because things have changed with USCIS these days, they are supposedy computerized, whether that appplies to very old cases I do not know.

The best course for you is to get waiver or at least check and see what DOS think of 212(e) you can apply for an advisory opinion (relatively quick).


uzun said:
I know someone who also went through the J-1, F-1, H-1 route. He was subject to the 2-year residency requirement for sure. The only difference between your case and his was that he spent a year outside the US (but not in his home country) between his J-1 and F-1. I know for sure he was able to get an H-1 stamp in his passport without any problems. But I can only assume the embassy in his country did not carefully check his previous visa history and he was really lucky. What's even more interesting is that this guy even got a green card lately without fulfilling the 2-year residency!!! How this happened is beyond me. So, the bottomline here is that the immigration officials do make mistakes sometimes and some people have taken advantage of this. Of course, the question is what would happen if the immigration people noticed that they made a mistake at some point. Would they revoke the green card or even the US citizenship of someone who took advantage of their mistake?
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The person I mentioned got his green card this year! Yes, it's quite amazing.
He claims he did not do anything tricky. He was not even asked to show proof for his 2-year residency. So I can only conclude that most probably there was a major screw-up in the computer system and the immigration people who worked on his case were somehow not aware of his previous J-1 status.
 
May be his J1 was old then.

Since 2003, (+ few older cases from early SEVIS trials) it seems every thing these days is trully is some sort of database.

To read how awful the immigration system is read the following article, it makes wonder :confused:

http://news.yahoo.com/s/nm/20061129/us_nm/usa_greencard_dc






uzun said:
The person I mentioned got his green card this year! Yes, it's quite amazing.
He claims he did not do anything tricky. He was not even asked to show proof for his 2-year residency. So I can only conclude that most probably there was a major screw-up in the computer system and the immigration people who worked on his case were somehow not aware of his previous J-1 status.
Click to expand...
 
May be his J1 was old then.

Since 2003, (+ few older cases from early SEVIS trials) it seems every thing these days is truly is some sort of database.

To read how in shambles the immigration system is read the following article, it makes wonder :confused:

http://news.yahoo.com/s/nm/20061129/us_nm/usa_greencard_dc






uzun said:
The person I mentioned got his green card this year! Yes, it's quite amazing.
He claims he did not do anything tricky. He was not even asked to show proof for his 2-year residency. So I can only conclude that most probably there was a major screw-up in the computer system and the immigration people who worked on his case were somehow not aware of his previous J-1 status.
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He said he was 16 when he got J1... Isn't it uncommn to get J1 funded by US which is subject to 2 year HRR for such young person ?
 
Yep, that's also another factor in my case I think. I mean I was so young when I got J-1 and I really didn't have the maturity to bother with what it meant to have J-1 with 2 year rule. Maybe that's something I can mention at some point.
 
No, that was not my point. Maturity won't override HRR as rule is clear.
I'll take back what I said in my last post.

Before considering waiver, I'll insist you to ask your employer to check I-129 form they submitted.
If they answer J1 question in I-129 incorrectly(that is what I suspect happened), it can cause very serious problem(parmanent bar to the US if considered immi fraud).
 
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