J-1 and Green Card--Please post here

Hi,

Sorry to cut in the middle. But I need yo clarify about this popular GC concept.

Gurus in this forum usually advise against petitioning while on F,J or O status. But some attorneys claim that "US consulates do not usually enforce that law" I have seen this in almost every lawyers website.

Is this true or are they just trying to convince you to petition (because for an attorney after petitionnig it really does not matter if it gets through or not)

I am asking this because I might be qualified for NIW long before I go for an H1 so no need to wait (my country is not backlogged)
 
jk0274 said:
1- The AOS will be denied if the underlying I-140 is denied. You can file multiple I-140s before (or concurrently with) your I-485 though.
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This brings me to another questions:
- If I140 gets rejected and I did not apply for adjustment of status, I can simply just resubmit another I140, right?
- If I also submitted I485, I should better submit several I140 to make sure that I don't waste the $1000 fee for the I485 if the single I140 gets rejected for whatever silly reason.
- If I applied for Advance Parole and use it to travel, my J1 basically gets invalid. So if then either the I140 or I485 gets rejected I have to leave the country,right? Is there a grace period?
- In that case, can I apply immediately for an H1B?

(all of this of course with a waived 2 year home residency requirement).

jk0274 said:
2- You can apply for AOS concurrently if your I-140 is under the EB-1 category, or EB-2 if you are not from India or China. Otherwise, you have to wait until your priority date becomes current.
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The question was if I need to submit at the same time when applying concurrently or if I can submit the AOS anytime while the I-140 is still being processed.

Thanks for your advise.
 
1- Yes, you can simply file a new petition with it's own new set of evidence.
2- Well, I don't know about "several I-140s", it's not like it's feasible to do more than 2 at a particular period. For example, an EB-1 plus an EB-2/NIW, or an EB-2/NIW plus an EB-2 with labor certification.
3- Yes if you reenter the US with an AP you will (be definition) not be in J status. If your I-485 is denied you'd have to leave. There's no grace period, but usually you will get a notice of intent to deny before you get an outright denial.
4- A good lawyer might be able to help you apply for an H-1B after a I-485 denial, but remember H-1B requires employer sponsorship which actually takes a while; it's not "immediate".

Right now, you can file your I-485 at any time after you filed your I-140, even if it's still pending (and of course, your priority date is current). This may change in the future, but that how things are right now.
 
Hi,

Not exactly sure if this is the relevant thread to post my question. I am currently on H-1B visa (5th year) with little hope of getting GC through labor certification.

I plan to apply for a fellowship program (a non physician program) at CDC which offers J1 visa to non US citizens. The fellowship program is for 2 years.

My questions are:
1- Do all J-1 visas subject to HRR? What about something like the one which I mentioned above.
2- If there is a HHR, can I get a waiver based on no objection from my home country or hardship waiver? Is harship waiver only reserved for physicians?
3- What will be the visa status after getting the J1waiver? I guess H-1 won't be desirable as I am already in my 5th year and by the time this fellowship will start I will be in my 6th year. Can the visa status be J-1 on the waiver?
3- Can GC be applied after J1 waiver if the applicant is on J-1 visa? If yes how?

Thank you so much for your help!
 
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1- Not all J-1 visas subject you to HRR. The two main criteria are 1- If either the US government or your own country's gov't funded your program, or 2- (more worrisome in your case) if the subject you're getting trained in has been designated by the US to be in shortage in your home country. The DOS publishes a Skills List for each country. If your program is on the skills list of your country, you are subject to the HRR.

2- You can try No Objection in most, though not all, cases.

3- A "J waiver" is not a status. Your status will be J-1 exchange scholar as you always were. But getting the waiver actually prevents you from extending your J-1 status, so plan carefully. If you apply for a waiver but you don't have a plan to get into another status after your J expires, you might be forced to leave.
4- If you think the H-1B route is not a stepping stone to a green card, the J-1 is even less so. A J-1 program has absolutely no "step" towards a green card in and of itself. If you are in J status and you want a green card, you'd have to go the same route as everybody else: Find an employer or relative that can sponsor you, or apply under the NIW or EB-1 categories where no sponsor is required. With any of these routes, getting into J status will be of no benefit. If anything, with a possible HRR, it will make it harder.
 
Fkhan2, The comment by jk0274 is accurate and one may never use J1 unless he doesn't have any intention of stay.

As a matter of fact I know a person (one of my mentors) who had catastrophic problems with J1. He said once it seemed like he have to leave for good with his family, by the time he had US educated children who'd have problems adapting back. Furthermore he'd have reduced opportunities in his home country. Luckily he got a waiver in the last moment.

For any one who currently in a Non J1 status may never want to go to a J1 status, unless you are a physician. Remember a Waiver is very difficult to get and even if it seems possible now it might change as it depends on both US and your home country's political situation. Even if a person get EB1 or EB2 NIW petition approved, they have to leave for 2 years before AOS. Staying 2 years outside US may jeopardize your AOS (If you were unable to maintain the standard specified in NIW or EB1 petition in those 2 years, which will be very difficult in some countries).

I never meant to upset J-1 holders. I wish all the best for you guys. But I think we should prevent anyone from falling in to the more difficult j-1 status without knowing all the regulations behind it.

P.S: If you are a Fresh PhD graduate and looking for a postdoctoral position, think twice if the university is only sponsoring J-1 for post-docs. Try to hang on to extended OPT (2.5 years) rather than J-1. One other way is to get an o1 (where possible)

(I am not a lawyer so whatever I say may not reflect the real situation)
 
Thankyou JK0724 and niweek for your valuable advice. This makes a lot of sense. However I have one quick question and may be it is a stupid question. Can a J-1 holder (non physician) during the duration of J-1 status apply for NIW based on his or her US advance degree? If yes can they also get the I-485 approved during the period of J-1 status so that they don't have to apply for any waiver and get their green card before the end of J-1 status? Once again thanks alot for your help guys!
 
fkhan2 said:
Thankyou JK0724 and niweek for your valuable advice. This makes a lot of sense. However I have one quick question and may be it is a stupid question. Can a J-1 holder (non physician) during the duration of J-1 status apply for NIW based on his or her US advance degree? If yes can they also get the I-485 approved during the period of J-1 status so that they don't have to apply for any waiver and get their green card before the end of J-1 status? Once again thanks a lot for your help guys!
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I think I have answered that question in my reply. I'll express it in another way. But remember I am not a lawyer and I comment from what I have seen, heard and read.

Now let's analyze all situations. Either one of the following statements has to be true.

1. you are not eligible to petition until completing 2 year (home residency)

2. You may petition but not eligible to AOS until completing 2 year residency.

3.You may petition and do AOS no restrictions

Please note that no 3 cannot be true as then this whole home residency requirement don't make sense

If the statement 1 is true then just forget the whole thing. As far as I know this is not possible unless you have a very strong case for EB-1 ER. The Niw is difficult to prove once outside. Also chances for EB1-OR is slim (As getting a job offer while out side us is rare for most trades).

If number 2 is true then the problem is will your off US stay jeopardize your original petition. The question "Can the approved petition be challenged at the AOS stage?" arises. I am not sure but I have heard that it might be. This may be frightening for some candidates as it will be difficult to maintain the same level you said you were while petitioning for EB1 or NIW, while outside the US. For an example I know that there are no university departments for my major in my country. Can any body answer the question shown in bold letters? It will be helpful for many in the future.

I must state one thing. This whole J-1 law is so stupid. Most of us are funded by US institutions and most of that is just US tax payer money. Why would US train a good professional and turn him/her out to her competitors. Who came up with this bright idea.
 
To make a short story even shorter, here's the fact: You can submit an immigrant petition (any I-140, be it sponsored with LC or not) at any point. You don't even have to be in the US, and you certainly don't have to have your J-1 waiver. You cannot get H, L or permanent resident status if you are subject to the HRR and have not fulfilled it or gotten a waiver. So if you are subject to HRR, you can always submit the petition any time you wish but you cannot change status to H or L and you cannot file your I-485. (Yes I-140, no I-485). Furthermore, please read my old post (#6) above in this thread, particularly point #2 in that post.
 
jk0274 said:
To make a short story even shorter, here's the fact: You can submit an immigrant petition (any I-140, be it sponsored with LC or not) at any point. You don't even have to be in the US, and you certainly don't have to have your J-1 waiver. You cannot get H, L or permanent resident status if you are subject to the HRR and have not fulfilled it or gotten a waiver. So if you are subject to HRR, you can always submit the petition any time you wish but you cannot change status to H or L and you cannot file your I-485. (Yes I-140, no I-485). Furthermore, please read my old post (#6) above in this thread, particularly point #2 in that post.
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Jk0274,

Do you know anything about an approved I-140 (niw or EB1) getting denied in the I-485(or consular process) stage just because the applicant failed to maintain high academic/professional standard in between i-140 and i-485 (I am not talking about i-485 denial due to other reasons such as violations of previous status,crime etc).

If it is not j-1 might not be that bad of a choice. One can apply,go back and come back through consular processing
 
I don't know of any personally, nor have I read of any. Now, many people with approved NIWs or EB-1As have received RFEs during the I-485 adjudication stage asking for evidence that they continue to work in the same area of expertise as what they won their petitions for. But in all cases I read about, these people (all online cases I've read about) were ultimately approved after providing a simple employment verification letter including their job duties. I don't know what would happen if, in the event of such an RFE, a person is unable to produce such evidence.
 
I have been working as a postdoc/professor for almost 5 years on J1 status. I am married to a US citizen and am about to submit my I-485 with AP and work requests. I have two questions:
1: When does my J1 and DS2019 become invalid for travel? (does this occur when USCIS send me a text message confirming receipt of my application?).
2: On average, how long until advance parole and temporary work permits are issued? (My J1 is expiring at the 5 year max in about 2 months). If it takes much longer, is it possible to apply for a H1B visa while GC is in processing?

thanks for your time.
 
waiver RFE

Hi
I got the RFE for Waiver on my I-485. my waiver (I-612) came later than my application date (i was a concurrent filer)... Hence i couldn't submit the waiver during july '07 fiasco. Now the RFE clearly stating that i needed to have the waiver requirement at the time of I-485 application..should i submit the waiver now or should i also write a letter stating that the waiver processing time took longer than expected and hence i could not submit the waiver. I did submit the waiver certificate from govt of India which was sent to me a copy. during the waiver process USCIS lost case file and asked me to resubmit everything which delayed the process.
Please add comments..

BTW i applied my self.

Thanks and appreciate it

.
jk0274 said:
A few points to add to the above discussion:

1- Once you have applied for a J-1 waiver, you may run into problems extending or renewing your J-1 status. Once the state department issues its recommendation, it is impossible to renew/extend your DS-2019 or renew your visa abroad.

2- Applying for I-140 or I-485 while on a J-1 can jeopardize your J-1 status if you are not careful. In addition to the fact that you cannot renew a J-1 visa because you indicated immigrant intent by filing an immigrant petition (I-140), you may not be readmitted to the US in J-1 status even if your visa /DS-2019 is valid, because you have indicated that you are not planning to abide by your J-1 visa conditions (i.e. be an exchange visitor and return home), and you are actually planning to become an immigrant. So I would time I-140/I-485 applications carefully so they don't coincide with travel abroad and that you have enough time left on your current DS-2019 before your I-485 is filed so that you remain legally in the US after your J-1 expires. In your case, do not travel until you file I-485 and obtain your advanced parole document. As Lakksh said, you may continue your J-1 status as long as you don't leave the US (the USCIS leans towards the position that you are no longer in J status once you have filed your I-485, but it hasn't enforced this position and applicants such as yourself can still be considered in J-1 status as long as they don't leave the US). If you were to leave and come back as a parolee, then you would need your EAD to continue working even if your DS-2019 is still valid, because you are no longer in J status.

3- In order to file I-485, you must attach to your application at least the favorable recommendation from the Department of State, if you don't have the final USCIS J-1 waiver. Again, if you obtain the DOS favorable recommendation, even if you haven't yet filed I-140/I-485, I wouldn't travel as you risk not being readmitted because, by obtaining a J-1 waiver, you indicated you do not intend to comply with the J-1 conditions of returning home.

4- As lakksh said, a person on a J-2 does not need to apply for a separate waiver. However, if your spouse obtains his/her own J-1, then the spouse will need a separate waiver for him/herself. This doesn't seem to apply in your case though.
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