J1 got H1B now apply for GC

#1
I'm in a very strange situation.

I had my J1 visa 2 years rule long time a go. After graduate I left the US and work in other country. In 2015 my employer (in the US) filed my H1B petition, by this time I have only completed 1 year out of the 2 years rule. I wasn't aware of the complication. Luckily I got my H1B approved.

After that I went to the consulate to get the H1B visa but I decide to not move to the US yet (personal reason). One year later I move to the US (same H1B), at this point I already fulfilled 2 years at home country.

I've been working under H1B for few years then my employer file for I140 and I485. Only now I do realize the complication. What will happen with my GC application ?

Scenario 1: got REF and USCIS found out the H1B situation and get GC rejected.
Scenario 2: got GC rejected, H1B revoked and deportation.

Other scenario: ?

I've been google for the last few days and found nothing related to my case.
Thanks a lot.
 

Veggie3

Registered Users (C)
#2
Doesn't the H-1B application (whether for consular processing or change of status, in case you're already in the U.S.) ask you specifically whether you are STILL subject to the 2-year home residency requirement (2YHRR)? As long as you never lied or misrepresented anything to DOS/USCIS, you should be fine, I believe (needless to say, I'm not an attorney).

Your situation is not that strange. The 2YHRR is a State Department requirement. USCIS is of course aware of it, but its officials aren't always meticulous in implementing it. After I completed my 2YHRR, I had another J-1 (without 2YHRR). Afterward I switched to another employer, which filed for H-1B visa. I was waiting for documents from my home country to prove completion of the 2YHRR, when unbeknown to me, that employer's attorney went ahead and sent the H-1B COS application anyway. I then hurried and sent his office my 2YHRR documents. The H-1B was approved within less than a week. Did USCIS ever get that proof of completing the 2YHRR? I don't know. I sent the same documents with a cover letter to USCIS during my AOS (GC process), and it was approved within 2.5 months.
 
#3
@test123456789 I am in a similar situation. I came to US on J1 for 5 months and then went back to my home country for 15 months before coming back on F1. After completing studies I started working on OPT and now my employer had filed for H1B and it got approved too, recently (USCIS was aware of my 2YHRR waiver application being pending with DOS).
Now if I go back to my home country for visa stamping will I get any problems?

When you went back to consulate for H1B visa stamping did you get any issues?

Looking forward to hearing how you tackled the situation.
 
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