J1 -> I-485 while H1 is pending

[J1GC]

Hello All,

I am writing with regards to my soon to be wife who is in the US on J1, Researcher, visa. On her visa, the Visa officer marked that she is not subject INA 212 (e). He also marked the same on her DS2019. Her status is valid till the end of the year. Her field is not related to medicine, money is personal funds, and field of study is not of much relavence in her home country.

I am on H1, and want us to file I-485 next month, with her as the derivative (spouse). Here are my questions:

1. Can she file for I-485? Or does she need some other document from the USCIS/DOS regarding 2 Yr. HRR. My assumption is that if her visa and DS2019 say she is not subject to INA 212(e), then she would be allowed to file.

2. What happens to her J1 status the moment she sends the application to the USCIS. I read somewhere that her status is then no longer J1, but she is an "Adjustment of status applicant". Is this correct?

3. If her status is no longer J1, then at what point does she lose her Status? Is it when she gets the receipt notice?

4. If required, can her J1 be extended after filing the I-485.

5. She also found a job with an employer who filed her H1 (to start on Oct 1), but it is still pending. How does the approval of the pending H1 affect her I-485 and J1 status?

I have very limited knowledge about J1, and would really request some experienced members to help out.

Thank you so much in advance.

Regards

 

[jk0274]

If you are worried that she might be subject to 212(e), you can request an advisory opinion from the State Department (google J-1 advisory opinion). The consular official sometimes gets these things wrong and is not the final word in 212(e) determination, but the DOS itself is. This can take a few weeks though, and you probably don't want to do it and risk not being able to file I-485 because of future retrogression. Quick question: who is funding her J-1? Is it her home government? Assuming she is in fact not subject to 212(e), here are my answers to your questions:

1- Yes she can file I-485 as a derivative. You will include a copy of her DS-2019 with her application, so use a highlighter and highlight the section of the copy that states that 212(e) does not apply.

2- She does not lose J-1 status just by filing the I-485, but she does become ineligible for J-1 status. What this means is that she cannot renew her J-1 visa abroad, she cannot leave the country and be admitted as a J-1, and she cannot extend her J-1 in the US. But as long as she remains in the US to finish her program, she should be okay. If she needs to travel, she will need advanced parole (because she filed I-485), and can only be readmitted as a parolee, not as J-1. If she doesn't have advanced parole, she will not be readmitted to the US at all even if her J-1 visa is valid.

3. See 2 above.

4. See 2 above.

5. H is a dual-intent visa, meaning she can still obtain it while filing I-485 at the same time. Approval of H-1 does not affect her I-485, but obviously will invalidate her J-1 status as of Oct 1.

 

[J1GC]

Thanks, follow up questions

Hello Jk0274, and everyone else,

Thank you very much for taking the time to respond - it certainly helps to clear some of my doubts.

You asked about her source of funding - It says personal funds on her DS2019, which is indeed true.

When she went for the visa interview, the officer at first pointed out that she could be subject to this rule. But she explained that her source of funds is personal, her field is not related to medicine, and her area of study has no applicability in her home country. The Visa officer apparantly consulted the book and said ok and stamped her visa and DS2019 accordingly.


I have a few more questions:

1. Her visa was valid for 6 months, till July 07, but she got her status extended. However, all the other conditions (school, funds, field of study) remain exactly the same. Her new DS2019 does says nothing about that INA 212(e) since it was issued in April and she has not left the country since.

Is there any precedence that extension of J1 status makes the previous determination by the visa officer (that she is not subject to INA 212(e)) invalid/unacceptable?

2. Is it often the case that the USCIS finds that the Visa officer made a mistake while determining the applicability of INA 212(e)?


3. I read that it takes 4-6 weeks to get an advisory opinion (as of Mar 05). Is that the actual time observed these days? Any thoughts on whether it can be expedited?

4. Assuming the worst case - She files I-485 and at some point the USCIS adjudicator is not convinced that she is not subject to the 2 Yr. HRR:

a) Will they reject the case outright or ask her to procure a waiver
b) How much time will they give to respond to such an RFE?
c) What happens if you are unable to get a waiver in that time, will they let you adjust to LPR later?

I understand that point 4 is just speculation, but I am wondering if anybody had such an unfortunate experience, and how did they deal with it.


Thank you once again, and I look forward to your thoughts, and responses from others too.

Regards