J1 to O1 to GC

[shs00]

I am aware that one can consular process to an O1 immediately after a J1 expires (i.e. before the two year home country requirement and without a wiaver). My question is that once you are on an O1, can you either by yourself or through an employer petition for permanent residence (Green Card), and if so, can you do it right away, or do you have to wait a certain time period?

 

[Streamflow]

J-1 -> O-1 -> J-1 waiver -> H-1B -> Green Card

This is exactly my way: J-1 -> O-1 -> J-1 waiver -> H-1B -> 'Green Card' in EB1-OR category. After J-1 visa I held O-1 visa (‘Alien of extraordinary ability’ in science), 2001-04. During that time I got a J-1 waiver based on NOL. Then change status from O-1 to H-1B to have enough time for Green Card application. Finally I applied for Green Card. However, I decided to file ‘Green Card’ in the category EB1-OR (or EB1-2, EB1b - ‘Outstanding Professor or Researcher’) rather than in EB-EA (or EB1-1, EB1a - ‘Alien of extraordinary ability’). Category EB1-OR is more straightforward and EB-EA is very subjective.
However, O-1 visa is a temporary solution for you if you are a subject to 2Y HRR. Until you spend two years in your home country or obtain a waiver, you will remain the subject to 2Y HRR. There is no automatic J-1 waiver built into the O-1 visa. Thus J-1 waiver is first, and ‘Green Card’ is second. Strictly speaking, you may file I-140 Immigration petition for ‘Green Card’ right now, but you cannot file I-485 form (Adjustment of Status).

 

[I612]

You might either get a waiver on the O visa, or meet the 2yr HRR while on O1, because this 2yrs should not necessarily be continous, so you can visit your country frequently and build the 2yr track record. Not very realistic, but possible.

 

[shs00]

Thanks guys...your feedback has been very helpful.

 

[Streamflow]

2Y HRR accumulated by parts during O-1 status

You might either get a waiver on the O visa, or meet the 2yr HRR while on O1, because this 2yrs should not necessarily be continous, so you can visit your country frequently and build the 2yr track record. Not very realistic, but possible.

Are you sure? I have information that this is impossible for O-1 holders: “Those who qualify for O-1 status usually also qualify for permanent resident status as a person of extraordinary ability who does not require a job offer or labor certification from the Department of Labor. However, obtaining an O-1 visa or any other nonimmigrant status by a J-1 visa holder does not eliminate the need to either obtain a waiver of the two year home country rule or to return to the home country for two years. Moreover, the time spent by a J-1 visiting a home country while in O-1 status does not count towards the satisfaction of the two-year rule. Thus, O-1 status is a temporary solution for persons of extraordinary ability who have not yet been able to obtain a waiver of the two year foreign residence requirement. Nonetheless, it may be the only solution for many J-1 exchange visitors who are not prepared to return home for two years and are not yet eligible for a waiver.” (http://www.maggio-kattar.com/pdfs/O-1-Extraordinary-Ability.pdf)

 

[LucyMO]

Moreover, the time spent by a J-1 visiting a home country while in O-1 status does not count towards the satisfaction of the two-year rule.

these are the words of attorneys. They do not provide a reference to a specific law statute. Can you?

 

[WhyThisDelay]

H4 visa -> J1 visa

I'm on a H4 visa (My spouse is on H1 visa).

I'm thinking of taking employment under J1 visa (tired of trying for H1 visa). The only thing which scares me is if my visa is denied at the home country US counsellette. How do I show my non-immigration intent, when I'm on H4 and my husband just started the Green card process?

All answers / thoughts are highly appreciated.

Thanks.

 

[LucyMO]

change status, instead of leaving the US and getting a visa. Please be careful though, because your J-1 status may carry an HRR, which will not allow you to immigrate until you spend two years at home

 

[Streamflow]

HRR accumulated by parts

Moreover, the time spent by a J-1 visiting a home country while in O-1 status does not count towards the satisfaction of the two-year rule.these are the words of attorneys. They do not provide a reference to a specific law statute. Can you?

Certainly this is an attorney interpretation and I cannot provide a reference to a specific law statute too. However, Maggio Kattar's attorneys are not the last people in this business. As I recall, in other thread you recommend to accumulate HRR by parts during F-1. Could you please provide a reference to a specific law statute for this case? Presumably you answer may be based on the statement that “this is not prohibited by law”. Supposedly this is true. However, I believe this is a very grey zone and arguments are possible to support both sides. Meantime, an opinion by Rajiv S. Khanna on this subject correlates to the Maggio Kattar's statement:
“A105: Fulfilling the home residency requirement is possible only through returning to the country of last permanent residence outside of the United States. Any trips to the US this time have to be planned carefully. Brief and casual visits less than a month or so, undertaken frequently are probably permitted. The time you spend in US will be compensated by spending extra time of the same length outside the US. Note, however, if you spent too much time in the US, you will be required to start your 2 years stay abroad all over again.” (http://www.immigration.com/faq/jvisa.html)

 

[LucyMO]

Yes, I can provide the link to the law:

http://exchanges.state.gov/education/jexchanges/about/22CFR62.pdf


Home-country physical presence re-quirement
means the requirement that
an exchange visitor who is within the
purview of section 212(e) of the Immi-gration
and Nationality Act (substan-tially
quoted in § 62.44) must reside and
be physically present in the country of
nationality or last legal permanent
residence for an aggregate of at least
two years following departure from the
United States before the exchange vis-itor
is eligible to apply for an immi-grant
visa or permanent residence, a
nonimmigrant H visa as a temporary
worker or trainee, or a nonimmigrant
L visa as an intracompany transferee,
or a nonimmigrant H or L visa as the
spouse or minor child of a person who
is a temporary worker or trainee or an
intracompany transferee.

See where it says "aggregate"??? It does not say "continuous".

and again:

until is established that
such person has resided and been phys-ically
present in the country of his na-tionality
or his last legal permanent
residence for an aggregate of at least
two years following departure from the
United States.

 

[Streamflow]

HRR accumulated by parts while on O-1 status

Yes, I can provide the link to the law: http://exchanges.state.gov/education/jexchanges/about/22CFR62.pdf. Home-country physical presence re-quirement means the requirement that an exchange visitor ... must reside and be physically present in the country of nationality or last legal permanent residence for an aggregate of at least two years following departure from the United States ...

Wait, wait … We are speaking about different issues (please read carefully my posts). I don’t cast any doubt on the aggregation of HRR by parts. I am aware that two years in home country may be accumulated by parts (e.g., 1.5 years plus 6 months). Once someone accumulates a total of two years, he or she has satisfied the requirement. You are right; this point is described by the law very well. I pose another level question. Will any time spent in the home country (e.g., during summer vacation) be counted toward the two years of residency in the home country while the alien is on O-1 status?

Let us consider an example. Dr. ‘Aibolit’ from ‘Ruslandia’ is subject to INA 212(e) 2Y HRR and currently he is at home. He spent one year at Ruslandia. Then he visited third country (say ‘Limpopo’) during 6 months. Obviously these 6 months in Limpopo will not be counted toward the two years of residency. He returned back to Russlandia and spent another 8 months at home. Thus Dr. Aibolit accumulated 20 months (12 + 8). At this time he got a job offer (tenure track position at a university in USA) and should immediately to leave Ruslandia. Since Dr. Aibolit is still a subject to 2Y HRR he cannot get H-1B visa. But Dr. Aibolit is a brilliant scientist and he is able to get 3 year O-1 visa (‘Alien of extraordinary ability’). After two semesters in USA he takes annual leave plus leave without pay (or sick leave) and decides to spend the last 4 months in Rusladia to satisfy 2Y HRR. During these 4 months he still holds the O-1 status. However according to Maggio Kattar's attorneys these four months in Russlandia while he is on O-1 status will not be counted toward the two years of residency in the home country. Dr. Aibolit, on the contrary, should to terminate his O-1 employment and spend the last 4 months without any US visa. In this case he will satisfy the requirement. After that Dr. Aibolit may apply for H1-B (or again for O-1) visa and then for ‘Green card’.

 

[LucyMO]

See, once you leave the US, you don't have a status anymore (unless you are a permanent resident). That's why you always need a visa to come back on and activate your status.

I spend 1.5 hours yesterday searching through the government websites for information on fulfillment of HRR. There was no information pertaining to people with O status and their fulfillment of HRR. None.