My I-140 was approved in May '05 and I filed my I-485 in 7/05 without the help of an attorney (!). I recently got an RFE because I forgot to include a copy of my IAP-66 corresponding to a J1 visa I had for 4 months in 1993 when I first came to the US. I then left for 18 months, lived one year in Italy, and 6 months in Uruguay (I am a citizen of both those countries), I came back for grad school in 1995 and I am still here.
The docs I have state pretty clearly that it was determined at that time by the U.S. consular official that I was not subject to the 2 year rule.
Two things that worry me are that (a) the checkmark is shifted in the pink copy I have, a pretty common even from what I read (I was unable to obtain other copies, apparently neither the old INS or Departmet of State keep documents that long); however the corresponding passport visa stamp is very clear in stating the two year rule did not apply. (b) the program sponsor wrote the wrong country as the country of residence (Italy, which has no skills list), which I corrected to Uruguay, where I was residing at the time. Unfortunately it turns out Uruguay does have a skills list. However, as far as I can tell, my skills are not included in that list. Neither the code they used in box 4 (medical research) or the verbal description (pharmacology) are in the skills list for my country. 'Drugs' are though, and though I have never worked in that area somebody could argue Pharmacology, which was actually just the name of the department I was at, is related to drugs. I have a letter from the professor I worked with stating I was going to do 'molecular neurobiology', which is what I actually did. I would presume this falls under 'biology', which is not included in that skills list either. I did not come for medical graduate studies and I did not receive funding from the US or my government.
The Director of International Services at the University and the Program Sponsor person I talked to both said I should be OK, but since I was worried I consulted an immigration lawyer that was much reccomended. She said there is a risk my I-485 could be denied because the INS might say the Department of State does not have the last word about whether this rule applies or not. She is currently reviewing all my docs and the related laws and will let me know. Apparently I have a couple of options: I can send the docs as is, and risk a denial; I can have her write a detailed explanation of why the rule does not apply, which might end up in an aproval or denial, or if after her research she finds out there is a chance they might say it does apply after all, I would have to file a request for an extension (I have to send the docs by 7/25), and get a J1 waiver in the meantime. This means more stress, time and money.
I just can't afford having the I-485 denied because then I wouldn't be able to maintain status and work, and this is an employment based case! My H1B expires at the end of the year and I would have to beg the University to extend it at the most until 5/07, after which I cannot be a postdoc any longer and would have to get an EAD based on the aproved I-140 and switch my position to research scientist, something my boss is willing to do). She mentioned that in the worse case scenario we could file a motion to reconsider after getting the waiver... all this freaks me out.
Sorry to be so long winded, but I have been very anxious since I got this RFE, and it is only getting worse as I do more research (in the beginning I thought the J1 was not a big deal). Has anybody been through something similar or has advice on this? Would the USCIS really deny a case based on the possibilty the 2 year rule applies after all, or is it more likely they would issue another RFE asking for the J1 waiver, which I should be able to get via the 'no objection' way?
The docs I have state pretty clearly that it was determined at that time by the U.S. consular official that I was not subject to the 2 year rule.
Two things that worry me are that (a) the checkmark is shifted in the pink copy I have, a pretty common even from what I read (I was unable to obtain other copies, apparently neither the old INS or Departmet of State keep documents that long); however the corresponding passport visa stamp is very clear in stating the two year rule did not apply. (b) the program sponsor wrote the wrong country as the country of residence (Italy, which has no skills list), which I corrected to Uruguay, where I was residing at the time. Unfortunately it turns out Uruguay does have a skills list. However, as far as I can tell, my skills are not included in that list. Neither the code they used in box 4 (medical research) or the verbal description (pharmacology) are in the skills list for my country. 'Drugs' are though, and though I have never worked in that area somebody could argue Pharmacology, which was actually just the name of the department I was at, is related to drugs. I have a letter from the professor I worked with stating I was going to do 'molecular neurobiology', which is what I actually did. I would presume this falls under 'biology', which is not included in that skills list either. I did not come for medical graduate studies and I did not receive funding from the US or my government.
The Director of International Services at the University and the Program Sponsor person I talked to both said I should be OK, but since I was worried I consulted an immigration lawyer that was much reccomended. She said there is a risk my I-485 could be denied because the INS might say the Department of State does not have the last word about whether this rule applies or not. She is currently reviewing all my docs and the related laws and will let me know. Apparently I have a couple of options: I can send the docs as is, and risk a denial; I can have her write a detailed explanation of why the rule does not apply, which might end up in an aproval or denial, or if after her research she finds out there is a chance they might say it does apply after all, I would have to file a request for an extension (I have to send the docs by 7/25), and get a J1 waiver in the meantime. This means more stress, time and money.
I just can't afford having the I-485 denied because then I wouldn't be able to maintain status and work, and this is an employment based case! My H1B expires at the end of the year and I would have to beg the University to extend it at the most until 5/07, after which I cannot be a postdoc any longer and would have to get an EAD based on the aproved I-140 and switch my position to research scientist, something my boss is willing to do). She mentioned that in the worse case scenario we could file a motion to reconsider after getting the waiver... all this freaks me out.
Sorry to be so long winded, but I have been very anxious since I got this RFE, and it is only getting worse as I do more research (in the beginning I thought the J1 was not a big deal). Has anybody been through something similar or has advice on this? Would the USCIS really deny a case based on the possibilty the 2 year rule applies after all, or is it more likely they would issue another RFE asking for the J1 waiver, which I should be able to get via the 'no objection' way?