I130 petition during J1 waiver

[xcv]

I want to thank the immigration portal members for their savy comments. I have learned a lot about the J1 waiver process from posted threads. I am starting my J1 waiver job next month which I got through ARC. Can I apply for GC as soon as I start my waiver as my wife is US citizen? pls. guide

Thanks

 

[hadron]

> Can I apply for GC as soon as I start my waiver as
> my wife is US citizen? pls. guide

The moment you have changed from J1 to H1b status, you are free to pursue a GC ('dual intent' visa vs non-immigrant visa) Your wife will be able to file the I130 on that day.

You will have to wait with I485 and EAD until you finished 3 years IN H1B STATUS (you might be able to file for both earlier, you just can't use the EAD)

If you are from a country with a consulate that has relatively short waiting times for interviews, you might want to go through CP as you will receive the actual permanent residency earlier than through the I485 process.

 

[J1victim]

J1waiver and timing of GC application

I am starting my J1 waiver job next month which I got through ARC. Can I apply for GC as soon as I start my waiver as my wife is US citizen?

>You will have to wait with I485 and EAD until you finished 3 years IN H1B STATUS (you might be able to file for both earlier, you just can't use the EAD).
If you are from a country with a consulate that has relatively short waiting times for interviews, you might want to go through CP as you will receive the actual permanent residency earlier than through the I485 process.

I differ here. other than a physician NIW, you may NOT file an I-485 before your 3 years of waiver job are over. however, what you can do is:
1. get J1waiver and start your waiver job.
2. file NIW physician (I-485+I-140).
3. ask your wife to file I-130 for you.
3. at the end of 3 years, use your pending I-485 from NIW to switch to your I-130 family based immigration.
.
see pederson and freedman website, Q 31:
http://www.usvisainfo.com/object/pdf/j1/j1faqs.pdf

here is what it says:
*****************************
If a waiver is obtained through an interested federal government agency, and INS approved the waiver after September 30, 1996, and with respect to all State 20 waivers, the current INS view is that the physician must work in H-1B status for three years before applying for permanent residence. However, an immigrant visa petition may be approved at any time during the three year period; it is the application for permanent residence which cannot be filed until three years of service in H-1B status are completed.

J-1 physician with interested government agency waivers, who jump the gun
and file an I-485 before completing three years of work in H-1B status (other
than NIW beneficiaries) face a disastrous consequences, if detected by INS.
Persons whose interested government agency waivers were approved by INS
after September 30, 1996, must work three years in H-1B status before filing
an I-485, “Application for Status as Permanent Resident”, unless an NIW
beneficiary.

Sadly, a number of physicians, often upon the erroneous advice of counsel,
jumped the gun and filed the I-485 with INS prior to the completion of the three year H-1B commitment, only to have the permanent residence application denied some years later for failure to complete three years in H-1B status. In some cases, the physician had never even had H-1B status, so the problems are even more compounded. There was no grandfather clause in the 1996 amendments to Section 214(I) of the INA and no provision to provide for pipeline cases. Simply put, if INS had not approved the IGA waiver by September 30, 1996, one may not apply for permanent residence, except for National Interest Waivers, before actually completing a full three years in H-1B status. Those who have jumped the gun have had the two year home
residence requirement reinstated and the application for permanent residence
denied.************
.

 

[hadron]

(that's why I said 'you might'. Initially I had worded it more cautiously, somehow I changed it to the current version. sorry)

You are of course correct:
- DO NOT file the I485 before your 3 years in H1b status are over. The I130 can be filed earlier.

 

[m_img]

This brings up an interesting point...

According to the Q/A in the above link:

1) J2 who got the waiver based on the principal J1, can apply for GC on his/her own and submit 485 before 3 years on H1 are served.

My understanding is the 2 year HRR applies to J2 also. How would this have any advantage, if any?

2) At what stage you get EAD in your GC processing (with respect to J1 waiver job)?

I know that EAD can not be used by the principal J1 waiver applicant before 3 years of H1 are served. Can J2 dependent (now H4 due to principal is on H1), use his/her EAD? Does he/she gets EAD?

Thank you.

 

[Aibolit]

H-4 holders are not eligible for EAD.

 

[J1victim]

J2 and EAD and H4

.

1) J2 who got the waiver based on the principal J1, can apply for GC on his/her own and submit 485 before 3 years on H1 are served.

>>> Yes. J2 can submit a 485 from any petiton before 3 years. But if J2 is filing as a beneficiary of J1, then it can not be done (other than the physician NIW 485).

My understanding is the 2 year HRR applies to J2 also. How would this have any advantage, if any?

>>> once the principal J1 has a waiver (and J2 also has a waiver), then J2 is free to pursue a GC process off his/her own.
J2 can get GC earlier (but this GC will not be based on J1's work. it has to be other source (as J1 will be tied with the H1B work for 3 years and can not get GC before that).


2) At what stage you get EAD in your GC processing (with respect to J1 waiver job)?

>>> you may file for EAD (for both J1/J2 ... now H1/H4), from NIW physician work, as soon as soon as you get your J1 waiver approved by CIS. it can be even before start of your waiver job. and USCIS will approve it. J2 (now H4) may start using it as soon as EAD is available. again, NIW Physician work is the ONLY way you may get an EAD for yourself and your spouse within the first 3 years of waiver job. (unless your spouse decides to pursue a GC off his/her own from other sources)

I know that EAD can not be used by the principal J1 waiver applicant before 3 years of H1 are served. Can J2 dependent (now H4 due to principal is on H1), use his/her EAD? Does he/she gets EAD?

>>> Yes. see explanation above.

H-4 holders are not eligible for EAD.

Incorrect. H4 can get an EAD based on NIW physician work.
.

 

[m_img]

Thank you..

I'm going for GC via LC.

To summarize,

1) Spouse of j1 can apply for GC on his/her own after principal J1 gets waiver.

2) If current processing timing is any indication, spouse will get GC before 3 years are up.

Now, what happens:

a) to J1 principal. He/she was listed as spouse in GC petitions

b) 485 or CP was submitted and processed, what happens then. If you cannot process 485 or CP before 3 years are up, what is advantage of spouse starting LC,GC etc. on his/her own.

Thank you!

 

[J1victim]

J1 spouse CP/485 clarification

To summarize,!

1) Spouse of j1 can apply for GC on his/her own after principal J1 gets waiver.

>>> yes.

2) If current processing timing is any indication, spouse will get GC before 3 years are up.

>>> yes

Now, what happens:
a) to J1 principal. He/she was listed as spouse in GC petitions.

>>> nothing. principal J1 has to wait for 3 years of waiver job. although he/she can retain the priority date for spouse's GC. use the *Follow to join* procedure for J1 GC (as dependent spouse) in this situation.

b) 485 or CP was submitted and processed, what happens then. If you cannot process 485 or CP before 3 years are up, what is advantage of spouse starting LC,GC etc. on his/her own.

>>> Advantages? it helps when:
a. the principal J1's employer refuses to do ALC for the J1 (now H1).
b. you want to get an earlier priority date for your GC process (e.g. if the spouse, on J2/H4, application is submitted as primary beneficiary in Jan 2005 and the J1/H1 application as primary beneficiary is submitted in July 2005, then you may get a 6 month priority date advantage in your GC process)
c. the spouse gets divorced.
.