J1 waiver and timing of I-485?
approve1gc said:
J-1 victim and Aibloit ,
Is it really possible to apply before 3 yearsbecause one of the attorneys says you have to wait until waiver period is over,Please share your thoughts.Do you know anybody who has done and not been rfed or
other experiences . I sincerely appreciate any input as I am very confused and worried
see pederson and freedman website, Q 31:
http://www.usvisainfo.com/object/pdf/j1/j1faqs.pdf
here is what it says:
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If a waiver is obtained through an interested federal government agency, and INS approved the waiver after September 30, 1996, and with respect to all State 20 waivers, the current INS view is that the physician must work in H-1B status for three years before applying for permanent residence. However, an immigrant visa petition may be approved at any time during the three year period; it is the application for permanent residence which cannot be filed until three years of service in H-1B status are completed.
J-1 physician with interested government agency waivers, who jump the gun
and file an I-485 before completing three years of work in H-1B status (other
than NIW beneficiaries) face a disastrous consequences, if detected by INS.
Persons whose interested government agency waivers were approved by INS
after September 30, 1996, must work three years in H-1B status before filing
an I-485, “Application for Status as Permanent Resident”, unless an NIW
beneficiary.
Sadly, a number of physicians, often upon the erroneous advice of counsel,
jumped the gun and filed the I-485 with INS prior to the completion of the three year H-1B commitment, only to have the permanent residence application denied some years later for failure to complete three years in H-1B status. In some cases, the physician had never even had H-1B status, so the problems are even more compounded. There was no grandfather clause in the 1996 amendments to Section 214(I) of the INA and no provision to provide for pipeline cases. Simply put, if INS had not approved the IGA waiver by September 30, 1996, one may not apply for permanent residence, except for National Interest Waivers, before actually completing a full three years in H-1B status. Those who have jumped the gun have had the two year home
residence requirement reinstated and the application for permanent residence
denied.
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it states that
* I-140 (whether ALC/NIW based) can be filed before 3 years of H1B waiver job are over.
* I-485 (NIW based) can be filed before 3 years of H1B waiver job are over.
* I-485 (ALC based or others) can NOT be filed before 3 years of H1B are over.
also know that:
** CP (ALC based) can be filed before 3 years of H1B waiver job are over. This will help you get your paperwork ready (theoretically) for GC interview at 3 years and 1 day of waiver job.
