J Waiver And 4 Year Contract
- Thread starter nashdel
- Start date
Hi
There was a technical problem with website when I was typing. Anyway. I am trying to enquire if 485 can be filed at the end of 3 years in state which have 4 years contract.
If my employer fires me in the 4th year of service, what am supposed to do. Go back to home country for 2 years, despite fulfilling 3 years federal requirment.
Also do BCIS needs certification from State agency as proof of fulfilling requirements of 3 years or they accept my W 2 and letter from employer.
Thanks
There was a technical problem with website when I was typing. Anyway. I am trying to enquire if 485 can be filed at the end of 3 years in state which have 4 years contract.
If my employer fires me in the 4th year of service, what am supposed to do. Go back to home country for 2 years, despite fulfilling 3 years federal requirment.
Also do BCIS needs certification from State agency as proof of fulfilling requirements of 3 years or they accept my W 2 and letter from employer.
Thanks
Please clarify
I believe that this question is in regards to state regulations that ban the employer from facilitating the J1 waiver docs immigration for a certain time period (is this what you mean with '4 year contract' ?)
If you give us more information as to the basis of your immigration case (NIW vs LC) and the nature of your states regulations maybe somebody can share his insight.
I believe that this question is in regards to state regulations that ban the employer from facilitating the J1 waiver docs immigration for a certain time period (is this what you mean with '4 year contract' ?)
If you give us more information as to the basis of your immigration case (NIW vs LC) and the nature of your states regulations maybe somebody can share his insight.
I do not know if state has told my employer not to facilitate immigration for 4 years but I have signed a contract with employer that I am going to work for him for at least 4 years. State wanted me to sign 4 year contact before sponsoring me for J 1 waiver. In that contract it does not mention anywhere that I can file adjustment of status before 4 years.
I am talking about GC via Labor. BCIS accepts 485 after 3 years of service. Do I have to wait for 4 years even for filing 485. I plan to work for 4 years with current employer but only want start 1-2 year waiting period for adjustment of status at the end of 3 year.
I understand I 140 is employer petition but isn`t 485 my application. where is employer involved at that stage to facilitate immigration?
I am talking about GC via Labor. BCIS accepts 485 after 3 years of service. Do I have to wait for 4 years even for filing 485. I plan to work for 4 years with current employer but only want start 1-2 year waiting period for adjustment of status at the end of 3 year.
I understand I 140 is employer petition but isn`t 485 my application. where is employer involved at that stage to facilitate immigration?
> am talking about GC via Labor. BCIS accepts 485 after 3 years of
> service. Do I have to wait for 4 years even for filing 485. I plan to
> work for 4 years with current employer but only want start 1-2
> year waiting period for adjustment of status at the end of 3 year.
Your immigration case and your contractual relationship with your employer are two different issues.
Immigration case:
I would insist on your employer filing a LC and I140 way before the 3 years are up. I would also insist on them giving you the I140 approval notice 3 years and 1 day after you started with them. That way, you can file I485 and the 180 day AC21 clock starts ticking. Once your 4 year contract is up, it is up to the employer to make you an attractive offer to stay on board (whether your GC is approved or not, after 180days post I485 filing you are free to leave for an equivalent position with a different employer). Don't allow them to dangle the GC in front of you in order to accept sub-par salary and working conditions. If they have a problem with supporting your GC in this manner, look for a different employer, possibly in a different state.
4 year contract:
Some of the J1 waiver employment contracts have absolutely unreasonable termination conditions written into them. 1 year notice periods, 250k liquidated damages and the like. Most of these conditions amount to the equivalent of 'bonded servitude' and wouldn't stand up in court if you ever had to challenge them (particularly in a 'right to work state'). But you don't want to leave an employer in an adversarial relationship, so honoring this contract is a good idea if the conditions are overall not bad. At the 4 year mark, you should be an equal partner in whatever private practice you work for. If you are not, it is not a place you would want to work for anyway.
If they are not willing to support your GC to the fullest they are crooks. In that case, you want to look for a different employer NOW to start your GC process. That way, you can terminate your waiver employment the day the paperwork for your waiver completion is in (3yr+) and move on to greener pastures. If you are not tied to a HPSA position, the jobmarket is much larger and you should be able to find someone willing to cough up the 5-7k for filing a LC as a 'signing bonus'.
> service. Do I have to wait for 4 years even for filing 485. I plan to
> work for 4 years with current employer but only want start 1-2
> year waiting period for adjustment of status at the end of 3 year.
Your immigration case and your contractual relationship with your employer are two different issues.
Immigration case:
I would insist on your employer filing a LC and I140 way before the 3 years are up. I would also insist on them giving you the I140 approval notice 3 years and 1 day after you started with them. That way, you can file I485 and the 180 day AC21 clock starts ticking. Once your 4 year contract is up, it is up to the employer to make you an attractive offer to stay on board (whether your GC is approved or not, after 180days post I485 filing you are free to leave for an equivalent position with a different employer). Don't allow them to dangle the GC in front of you in order to accept sub-par salary and working conditions. If they have a problem with supporting your GC in this manner, look for a different employer, possibly in a different state.
4 year contract:
Some of the J1 waiver employment contracts have absolutely unreasonable termination conditions written into them. 1 year notice periods, 250k liquidated damages and the like. Most of these conditions amount to the equivalent of 'bonded servitude' and wouldn't stand up in court if you ever had to challenge them (particularly in a 'right to work state'). But you don't want to leave an employer in an adversarial relationship, so honoring this contract is a good idea if the conditions are overall not bad. At the 4 year mark, you should be an equal partner in whatever private practice you work for. If you are not, it is not a place you would want to work for anyway.
If they are not willing to support your GC to the fullest they are crooks. In that case, you want to look for a different employer NOW to start your GC process. That way, you can terminate your waiver employment the day the paperwork for your waiver completion is in (3yr+) and move on to greener pastures. If you are not tied to a HPSA position, the jobmarket is much larger and you should be able to find someone willing to cough up the 5-7k for filing a LC as a 'signing bonus'.
Hi hadron,
I was reading your response to someone`s situation. you said BCIS test if you have served 3 years at 485 stage. How do they test that. Do they ask employer, do they ask state health department or do they want W2 etc.
I do not have any contractual obligations like paying 250K or informing them 1 year in advance. I like to file 485 as soon as I can. Enough of this insecurity which comes standard with J1.
My employer is filing for LC and then I 140. I hope with perm it will come in next couple of years, time remaining to complete 3 years of waiver.
I was reading your response to someone`s situation. you said BCIS test if you have served 3 years at 485 stage. How do they test that. Do they ask employer, do they ask state health department or do they want W2 etc.
I do not have any contractual obligations like paying 250K or informing them 1 year in advance. I like to file 485 as soon as I can. Enough of this insecurity which comes standard with J1.
My employer is filing for LC and then I 140. I hope with perm it will come in next couple of years, time remaining to complete 3 years of waiver.
Last edited by a moderator:
> you said BCIS test if you have served 3 years at 485 stage. How do
> they test that. Do they ask employer, do they ask state health
> department or do they want W2 etc.
Somebody posted the internal I485 adjudication manual on this site onece. I downloaded it, and it is buried somewhere in this wreck of computer. I'll give you answer once I find it.
edit
sorry, couldn't find it. Must be on the laptop.
Interesting question. If you use an EAD, it is not like your employment is reported to USCIS or anything. You show the card, you sign the I9 and thats it.
I remember from that document that checking for potential J1 HRR's was part of ANY I485 adjudication. How they do that, I am not sure.
edit
found it !!
http://www.ilw.com/lawyers/seminars/august2002_citation2b.pdf
I will let you know what I find.
edit
Where I come from, we have a quip that goes along the lines of: 'If you as a philosophy student to study the local phone book cover to cover well enough so he can recite it backwards, he will ask you 'WHY?'. If you ask a medical student the answer will be 'When do you want me to recite it'.
I guess the ability to accumulate large amounts of irrelevant information can serve me well in other areas as well.
If you download that 269page tomb of a PDF, and flip it to page 181 you can read up on the procedure they go through. Some pearls:
An applicant who receives a waiver under this section
of law, and changes his or her nonimmigrant classification from J-1 to H-
1B may not apply for permanent residence unless he/she has fulfilled the 3-
year employment contract with the health care facility in the specified HHS
designated shortage area named in the waiver application. PL103-416 has a
20 per State Limitation. There is no limitation on the number of waivers
issued by Federal Agencies.
A foreign medical school graduate who fails to meet the terms and
conditions imposed on the waiver under section 214(l) of the Act will once
again become subject to the 2-year requirement of section 212(e) of the
Act.
Extenuating Circumstances: Further, there may be extenuating
circumstances whereby the alien may not be able to fulfill the 3-year
contractual obligation; however, the alien will be required to serve the
balance of the 3-year period with another qualifying health care facility or
employer. Refer to recently issued guidance in memorandum issued by the
Office of Field Operations titled Waiver of the Two-Year Foreign
Residence Requirement under section 212(e) of the Immigration and
Nationality Act (the Act). October 4, 1999.
Eligibility to Adjust Status: To be eligible to file Form I-485, these
applicants must have served at least three years under the terms and
conditions of the waiver request granted by the interested Federal agency or
State Department of Public Health prior to the filing of the I-485. There is
no exception to this restriction. If the terms and conditions of the
waiver are not fulfilled, the applicant again becomes subject to the
restrictions of 212(e). [See 8 CFR 212.7(c)(9)(iv) and 8 CFR
245.1(c)(2)]
Other waiver provisions such as an approved I-612: If it is determined
that the alien is subject to section 212(e), a request for evidence will be
prepared requesting evidence that the applicant has fulfilled or received a
waiver of this requirement as of the date the I-485 was filed. If the
applicant cannot establish that the waiver was obtained as of the date of
filing of the I-485, the I-485 must be denied.
Form I-612 cannot be submitted concurrently with the I-485; however, if the
USIA no objection letter is submitted, the Center will accept it and work it. If
the I-485 is accompanied by an approval notice for Form I-612, the applicant
has met the waiver requirement. If the evidence is not provided, prepare an
RFE.
Sorry, doesn't give up too much information as to how they intend to check for the fulfillment of your HRR. God only knows how they handle this.
> they test that. Do they ask employer, do they ask state health
> department or do they want W2 etc.
Somebody posted the internal I485 adjudication manual on this site onece. I downloaded it, and it is buried somewhere in this wreck of computer. I'll give you answer once I find it.
edit
sorry, couldn't find it. Must be on the laptop.
Interesting question. If you use an EAD, it is not like your employment is reported to USCIS or anything. You show the card, you sign the I9 and thats it.
I remember from that document that checking for potential J1 HRR's was part of ANY I485 adjudication. How they do that, I am not sure.
edit
found it !!
http://www.ilw.com/lawyers/seminars/august2002_citation2b.pdf
I will let you know what I find.
edit
Where I come from, we have a quip that goes along the lines of: 'If you as a philosophy student to study the local phone book cover to cover well enough so he can recite it backwards, he will ask you 'WHY?'. If you ask a medical student the answer will be 'When do you want me to recite it'.
I guess the ability to accumulate large amounts of irrelevant information can serve me well in other areas as well.
If you download that 269page tomb of a PDF, and flip it to page 181 you can read up on the procedure they go through. Some pearls:
An applicant who receives a waiver under this section
of law, and changes his or her nonimmigrant classification from J-1 to H-
1B may not apply for permanent residence unless he/she has fulfilled the 3-
year employment contract with the health care facility in the specified HHS
designated shortage area named in the waiver application. PL103-416 has a
20 per State Limitation. There is no limitation on the number of waivers
issued by Federal Agencies.
A foreign medical school graduate who fails to meet the terms and
conditions imposed on the waiver under section 214(l) of the Act will once
again become subject to the 2-year requirement of section 212(e) of the
Act.
Extenuating Circumstances: Further, there may be extenuating
circumstances whereby the alien may not be able to fulfill the 3-year
contractual obligation; however, the alien will be required to serve the
balance of the 3-year period with another qualifying health care facility or
employer. Refer to recently issued guidance in memorandum issued by the
Office of Field Operations titled Waiver of the Two-Year Foreign
Residence Requirement under section 212(e) of the Immigration and
Nationality Act (the Act). October 4, 1999.
Eligibility to Adjust Status: To be eligible to file Form I-485, these
applicants must have served at least three years under the terms and
conditions of the waiver request granted by the interested Federal agency or
State Department of Public Health prior to the filing of the I-485. There is
no exception to this restriction. If the terms and conditions of the
waiver are not fulfilled, the applicant again becomes subject to the
restrictions of 212(e). [See 8 CFR 212.7(c)(9)(iv) and 8 CFR
245.1(c)(2)]
Other waiver provisions such as an approved I-612: If it is determined
that the alien is subject to section 212(e), a request for evidence will be
prepared requesting evidence that the applicant has fulfilled or received a
waiver of this requirement as of the date the I-485 was filed. If the
applicant cannot establish that the waiver was obtained as of the date of
filing of the I-485, the I-485 must be denied.
Form I-612 cannot be submitted concurrently with the I-485; however, if the
USIA no objection letter is submitted, the Center will accept it and work it. If
the I-485 is accompanied by an approval notice for Form I-612, the applicant
has met the waiver requirement. If the evidence is not provided, prepare an
RFE.
Sorry, doesn't give up too much information as to how they intend to check for the fulfillment of your HRR. God only knows how they handle this.
Last edited by a moderator:
To be eligible to file Form I-485, these
applicants must have served at least three years under the terms and
conditions of the waiver request granted by the interested Federal agency or
State Department of Public Health prior to the filing of the I-485. There is
no exception to this restriction. If the terms and conditions of the
waiver are not fulfilled, the applicant again becomes subject to the
restrictions of 212(e). [See 8 CFR 212.7(c)(9)(iv) and 8 CFR
245.1(c)(2)]
it seems from above that I may not be able to file 485 until end of 4 years. The sponsoring letter from state health department says contract is for 4 years. I guess that can be called terms and conditions of the waiver request granted by state department of public health. if that is true I am struck for 4.5 to 5 years in present place.
applicants must have served at least three years under the terms and
conditions of the waiver request granted by the interested Federal agency or
State Department of Public Health prior to the filing of the I-485. There is
no exception to this restriction. If the terms and conditions of the
waiver are not fulfilled, the applicant again becomes subject to the
restrictions of 212(e). [See 8 CFR 212.7(c)(9)(iv) and 8 CFR
245.1(c)(2)]
it seems from above that I may not be able to file 485 until end of 4 years. The sponsoring letter from state health department says contract is for 4 years. I guess that can be called terms and conditions of the waiver request granted by state department of public health. if that is true I am struck for 4.5 to 5 years in present place.
I don't think so. By filing an application to adjust status, you DON'T express any desire per se to leave that employer. On the contrary, by filing an I485 you and the employer affirm that you intend to continue this employment relationship 'permanently'.
Unless your DOH letter or some state policy specifically restrict the employer from sponsoring you, there is no reason why filing an I485 should represent a problem once the 3 years are done.
Again, I don't ask my attorney for medical advice, so don't take my word for it.
Unless your DOH letter or some state policy specifically restrict the employer from sponsoring you, there is no reason why filing an I485 should represent a problem once the 3 years are done.
Again, I don't ask my attorney for medical advice, so don't take my word for it.
Hi Folks
it depends if ur filing AOS via NIW if yes then one can file AOS as soon as 140 is approved even if it is 6 months into job--- the main advantage is that spouse can use EAD to work.The primary applicant still have to maintain H and work on H at the waiver site for total of three years and not use EAD.
If going through lab. certificate then one has to wait to finish three year commitment in order
to file AOS.
Hope this helps.
it depends if ur filing AOS via NIW if yes then one can file AOS as soon as 140 is approved even if it is 6 months into job--- the main advantage is that spouse can use EAD to work.The primary applicant still have to maintain H and work on H at the waiver site for total of three years and not use EAD.
If going through lab. certificate then one has to wait to finish three year commitment in order
to file AOS.Hope this helps.