do i need J1 waiver?

P

praytx

Registered Users (C)
I am trying to determine if I need to get a J-1 waiver? I tried searching the 'exempt list' on this forum and also on DOS site but could not find it (broken links). I am hoping on eof you knowledgable folks can help me. Here is a summary of my stay in US.

1. Arrived on J-1 in high school exchange program in 8/1989. My parents bore all the expenses. Left US in 7/1990 for 6 months.
2. Came back to US in 1/1991 on F-1.
3. Was on F-1 until 01/2000 (yeah!). I also had F-1's issued based on different I-20s from different Unives (1991-1992, then 1992-1995 and then from 1996-2000).
4. Switched to H-1 in 02/2000 and applied for GC (labor) in 9/2001.
5. Applied for 485 in 11/2003.

Currently I am waiting for my 485 approval.

At any point, when I had the different visas issued at the US Consulates, no consular officer ever asked me for a J-1 waiver. Also, is section 212(e) (is that the section that determines whether I need a waiver or not?) same now as it was in 07/1990? From what I recollect back in 1990, the only requirement I had was to leave the US at the end of my J-1 visa (1 year). I left after 11 months.

Now what I do not know is do I need a J-1 waiver now for my GC process? Please let me know if you need any further information. Thanks!
 
do you still have your IAP-66? It should say whether you were a subject. In any case, you didn't have any goverment funding, high school student "profession" is not on a skills list and it's not a medical profession. You are fine and you don't have to worry about anything - you don't not appear to be a subject. If you wanted to be absolutely sure - find your old IAP-66 or an old passport from that time and see if it says anywhere that you are a subject to 212(e).
 
Thanks for yoyr response LucyMO. Believe it or not, of all the documents since I have been here (15 yrs and counting now)...the only doc I no longer have is my IAP-66! However I do have my PP and looked up the visa stamp. It has no mention of 212(e) anywhere on it.

Also, all my H-1 and 485 has been sponsored by my employer and they are going thru a reputed firm and so far in my exp. my lawyer is pretty knowledgable abt diff immigration rules and regulations. I wud imagine if it was an issue, he wud have brought it up by now. two h-1, I-140 application, 485 application, enuff chances for it to come up that I had a J-1 visda and do i need a waiver.

So I am pretty sure i done need the waiver but wanted to be sure. Also, where can i find the 'skills list' just to rule out i am not a subject.

thanks.
 
SIR
WAIVER REVEIW DIVISION IS THE ULTIMATE AUTHORITY ON THIS SUBJECT. THEY DO NOT GO BY WHAT IS WRITTEN IN YOUR VISA OR DS 2019.THEY GO BY THE SUBJECT CATEGORY AND THEY WILL DECIDE BASED ON THAT. ALL THAT MATTERS IS " THE USDS ADVISORY OPINION " AND NOT THE VISA OFFICER'S OPINION. WHATEVER IS WRITTEN ON YOUR VISA IS A RECOMMENDATION MADE BY THE CONSULAR OFFICER. USDS / INS HAS THE AUTHORITY TO REJECT THE RECOMMENDATION. SO DO NOT COUNT ON
WHAT IS WRITTEN ON YOUR VISA AND IAP-66 / DS 2019.WAIVER REVEIW DIVISION CHECKS FOR THE SUBJECT AND DECIDES ON THAT FACTOR.

INTERDISCIPLINARY SUBJECTS ARE NOT MENTIONED IN THE SKILL LIST.SO DO NOT SEARCH FOR THAT EITHER. YOU COULD HAVE EASILY TAKEN AN ADVISORY OPINION LONG TIME AGO. IF YOU ARE SUBJECTED FOR 212E RULE THEN THE WAIVER DIVISION ITSELF WILL ASK YOU TO APPLY FOR A WAIVER.
ANYWAY YOUR LAWYER WILL DO THE NEEDFUL.
akalingan@yahoo.com
 
Hi aKalingan,

Thank you for your response. The problem is the lawyers do not know the right answer. I have two separate cases going on for my GC and therefore have two lawyers.

One lawyer didnt even think of getting a J1 waiver and the other said have a copy of your IAP-66 and J-1 visa handy. I no longer have a copy of my IAP-66 and only have the J1 visa stamp in my PP. The lawyer who advised this is not certain whether I need a J1 waiver or not.

Both lawyers are researching it. The problem is I am getting awfully close to my approval process (485 and CP) and from what I have found on this forum, it can take anywhere from 9-24 mos to get a J1 waiver which will further delay my GC process. :(

i am trying to find out if anyone else has been in a similar situation and hoping they cud help me out.
 
you don't have to worry about the waiver. Since you didn't have govt financing - you are not a subject. And you cannot ask for advisory opinion if you don't have your IAP-66. Department of State looks at it and makes the decision, whether you are a subject or not. :)
 
confused...need clarification

I need a clarification. Our CP lawyer says that I absolutely need a J-1 waiver. I also have another application in 485 and that lawyer says I do not need the J-1 waiver. Who do I beleive? At the current rate, our CP interview is going to be in March 2005.

Also, from this forum I have learned that it takes anywhere from 9mos to 2 yrs to get a J-1 waiver. Is that a correct estimate?

I really dont want my GC being held up at this point after taking this journey for so long.anyone have any suggestions/information that can help me?

are there some links/documentation that I can show which would help me indicating that I am not a 'subject' and therefore do not need a J-1 waiver?

thanks
 
http://travel.state.gov/visa/temp/info/info_1296.html

http://travel.state.gov/visa/temp/info/info_1288.html

Exchange visitors may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act, as amended, for one or more of the following reasons:


a. They received funding from the United States Government, their own government, or an international organization in connection with their participation in the Exchange Visitor Program.

b. The education, training, or skill they are pursuing in this country appears on the Exchange Visitor Skills List (1997 Amendment) for their country.

c. They acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

You had neither of these conditions. You are not a subject. If I were you, I'd forget about the waiver and all that nightmare, and go on with AOS and get your GC. After all, the I-485 form asks "to the best of your knowledge, were you a subject to HRR?". To the best of your knowledge, you are not a subject, since you had neither A, nor B nor C.
 
LucyMO,

thanks for ur response and I agree with your deduction. I used the same links. here are some more details abt my case.

I had already looked it up and provided it to the CP lawyer and am waiting for their feedback. The pertinent articles I found were 8 C.F.R. 212.7(c) (1) and 8 C.F.R. 212.7(c) (2) for who needs foreign residency requirement. As per these articles, I am not subject to the foreign residency requirement.

Also, for all my h-1 applns, i have mentioned my J-1 from before...in fact the last visa stamp in passport (2004) , I even had to show the US consular officer my old passport with the J-1 visa stamp in it. there was no mention of any j-1 waiver requirement by the officer.

As I said before, the CP lawyer does not think so and we are at a stalemate. Also since I have contradictory opinion from another attorney, it confuses the issue even more whether the waiver is necessary or not.
 
well, unless you can ask for a copy of IAP-66 (DS-2019) from your old highschool, you can neither ask for a waiver, nor ask for advisory opinion. If your old passport doesn't say that you had HRR and you have no way of getting a copy of IAP-66, you have no choice but to go get the immigrant visa or do AOS.

Your lawyer is not the one who determines whether you do or do not have HRR. If the consular officer or BCIS officer asks you about J-1, tell him the truth - self-financed study in highschool, IAP-66 is unavailable, etc. ANd to the best of your knowledge you never had HRR, and you have the old passport to prove it.
 
Hi LucyMO,

Thanks for ur response. I did contact my old high school for the records for iap-66. they said they only keep records for 7 years and unfortunately forme, I am past that now.

my 485 lawyer advised the same thing you mentioned...be honest and let the IIO decide whether a HRR is necessary or not.

i think thereis also a case for 'precedence' here. My CP interview is in Mumbai consualte....the same consulate which has issued me 4 visas in the past (not including the J-1). They should have alerted me before. Its only an argument and in the end they can always say they made a mistake earlier andnow are going to begin enforcing it...we shall see:)

tks for all your help.
 
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