please help me- J1 Waiver

S

saxchi

Registered Users (C)
Hello,

Am on a J1 visa who has come down from India abt 2 months back, the category being - Trainee(Specialty) in the field of Accounting, sponsered by my Indian company for 9 months. However, the following line is stated on the visa-"BEARER IS SUBJECT TO SECTION 212(E) TWO YEAR RULE DOES APPLY INDIA"

I seek ceratin clarifications:
1)Is it possible for me to get a waiver? if so, what is the success rate of such a waiver- the procedure, the costs involved and the time frame taken?

2) how long can a J1 visa holder continue to stay in this country given the visa category I'm in- which is Trainee (specialty)in the field of Accounting?

3)Can I continue to stay beyond the validity of my visa if I file for a waiver?

4)Can I prolong my stay in US on my own, even if my company chooses not to extend my stay?

5) what is the chance of getting my visa converted into any other visas.. if yes which type of visa would be ideal?

6) Even if the clause of moving out of US is mandatory can I move to Canada/ or any European Union for a short period and again try to re-enter to US instead of going back to India?

7) if someone or some company is ready to sponser me a H1 visa, will it be converted into H1 and even if it happens will that be possible without going back to your country of origin?

8)if A Green Card holder is ready to sponser my H1, will he be able to do so?

9)The clause mentions that I cannot enter US on a H or L visa until the period of 2 years is over. Does that include Dependent visas too like H4 or L2?

10)will the procedure be easy if I get married to a citizen? is there any scope of 'adjustment of status' incase I'm married to a citizen and without having to go back to India?

11) what would be my status quo if get married to a Green card holder? does the 5 year waiting period applicable which is the nromal norm if you happen to get married to a Green card holder in india?

12) One of the clauses of 212 E waiver entails that visa can be waiver provided it is proved "Exceptional Hardship to a United States Citizen (or Permanent Resident) Spouse or Child of an Exchange Visitor"- will the clause hold good If i'm married to a Green card holder or a US citizen?


Please advice!


Saxchi
 
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Wow, you have your questions arranged. I am not a lawyer and my experience with J1 waivers is limited to the special case of physicians but a number of things are universal to this visa and I will try to tell you what I know.

> 1)Is it possible for me to get a waiver?

I guess you bought your HRR because your occupation is on the 'skills list' for india. From what I understand, you might be able to get a waiver through the 'no objection' process. For that you need a letter from a certain indian goverment agency that says 'well, we send him away to be trained, but now we don't object if he stays in the US.' I don't know about the details of the process, if you do a search through the archives using 'NORI' you might find others who do.

By the way, I believe you can obtain an 'advisory opinion' from DOS to determine whether you are actually subject to the HRR. At times, the people issuing the visa make a mistake and stamp a HRR into your visa without a legal basis for it. If it turns out that you don't have a HRR, the issue of a waiver is moot.

> 2) how long can a J1 visa holder continue to stay in this country

I believe it is 2 years. Check on the DOS website, they should tell you.

> 3)Can I continue to stay beyond the validity of my visa if I
> file for a waiver?

You will need to maintain valid non-immigrant status while your waiver is pending. J1 or otherwise (e.g. O1, F1)

> 6) Even if the clause of moving out of US is mandatory can I
> move to Canada/ or any European Union for a short period
> and again try to re-enter to US instead of going back to India?

No. This is different from the H1b 'staying out of the country' requirement. In a J1 case, you have to go to the country that 'sent' you to be trained. (or at least have sufficient records to demonstrate that you stayed in india for 2 years).

Actually, this is not entirely correct. You CAN go to canada or the UK, but it will not count towards the fulfillment of your HRR. Sometimes J1 holders go canada to wait for their waiver to get through and their green-card to get approved.

> 7) if someone or some company is ready to sponser me a H1 visa,

You will need a waiver from the HRR before you can switch to H1b or a green card. Or you have to go home for 2 years of course.

> 9)The clause mentions that I cannot enter US on a H or L visa until
> the period of 2 years is over. Does that include Dependent visas too
> like H4 or L2?

You can enter on visitor and student visas. But you can't enter on any work-enabling visas except O1. Btw. your J2 dependents are also subject to the HRR.

> 10)will the procedure be easy if I get married to a citizen?

Sorry, the J1 visa is the only visa that excludes you from adjusting status through marriage. (you would be better off overstaying a visitors visa if that was your plan)
Even with marriage, you have to go either home or get a waiver before you can apply for AOS. (and no, the goverment doesn't think it is extreme hardship if your citizen spouse and your citizen children have to follow you home for two years)

> 11) what would be my status quo if get married to a Green card holder?

It is bizarre. If you get married to someone in the process of getting a GC, you can get your GC along with him/her without waiting.
Once they have the GC you have to wait 5-6 years.
After they become citizen, you can adjust pretty much right away. It is not fair, but that is how it works.
And again, the J1 blocks you from taking advantage of any of this until you either fulfilled your HRR or got it waived.

> will the clause hold good If i'm married to a Green card holder or a
> US citizen?

Less than 50% of extreme hardship waivers get approved. Unless you have 2-3 handicapped children and the US goverment would be stuck with their care once you are gone, they don't usually approve these waivers.
 
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thanks again..well how do I get an 'advisory opinion' from DOS as to whether my skill set really comes under HRR ? is there any way to know that?
and for the "No objection letter" which sort of an Indian goverment agency should I approach?

how safe is it to part with your passport to be sent back to India for the processing & how long does the whole process take?
 
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Hello Saxchi

Getting J-1 Waiver Consists of two steps of paper work.

First one is getting NORI Clearances from Indian Central and State Governments. The details about the procedure can be seen on this website

http://www.indianembassy.org/consular/nori.pdf

After receiving the NORI clearances from India the second step starts, which involves paper work with U.S.A. Governments.( USDOS & USCIS ) Among the so many websites available, I found the following website very informative and easily understandable because they have provided a graphic depiction of the US Government procedure involved.

https://www.immigrationsupport.com/...0Procedures.pdf

Please go through these website,take a print out of these pages and I hope you will understand the procedure thoroughly. If you have any doubts email me.
Thanks
akalingan@yahoo.com
__________________
Kalingan
 
Home Return Rule, haven't heard that expression yet. The goverment actually calls it 'Foreign Residence Requirement'

This is USCIS site on the waiver issue:

http://uscis.gov/graphics/howdoi/exchvisit.htm

This is where the law is
INA 212(e)

..shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States:...

http://uscis.gov/lpBin/lpext.dll/in...f=templates&fn=document-frame.htm#slb-act212e

And here you can find information on how to obtain an advisory opinion:

http://www.travel.state.gov/visa/tempvisitors_info_waivers8.html

(they haven't updated the skills list since 1997 !)

And yes, accounting is on it. ;-(((
 
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hi Kalingan

I read your detailed hands on experience in removing u'r J1 waiver..it was exhaustive and informative!! thanks a lot ..it's a great help to ppl like us ...

in my case, i did my fair amount of research and from the Skills list i found that accountancy under which program I'm in, is indeed in the HRR list.. but the type of training for which I have come is more of the Finance nature (which is NOT under the HRR List) than Accounting.. rightly it can be said a mixture of Finance with a slight flair of Accounting..Can i request an Advisory decision hightlighting this point to the DOS and also submit the training plan which I had submitted at the time of getting a J1 sponership from the international organisation who sponsered my visa? i got my sponsership from CIPUSA, Ohio..

Can you please help me out or guide me so that somehow am able to get a clue and save myself from the drudgery of getting througyh the tediosu process of waiver requests?

does waiver request have a negative impact on u'r profile which the DOS and INs keeps a track of for future date?

thanks
saxchi
 
Reply

Hello Saxchi

Do not explain anything to them about your actual training or work.They will not accept it.
They go by what is written in the DS2019 / IAP-66 document. They will read the document and advise according to what your document says. Remember they always go by rules and not based upon your / our explanation.

If the advisory opinion says you have to apply for a waiver then there is no way you can escape that. So get the advisory opinion and act accordingly.
The earlier you do it the more time you gain for the waiver process. We do not have any control on getting the waiver from Indian governments.They will take their own time.All you can do is wait for the papers. So better save time to spare for the process.
Waiver process does not have any negative impact on your future paper work.
Friendly
Kalingan
 
Go to your home country embassy website. That's where I found all the info for my waiver. Once my home country government issued the statement that they don't object, the embassy sent the letter to state dept. Now I'm waiting on an answer from state dept, but first they lost my file, than they reestablished it, and now I'm hoping that they will stop slowing the process....Good luck!
 
Hadron,

Reg your response below to Q11:
----------
> 11) what would be my status quo if get married to a Green card holder?

It is bizarre. If you get married to someone in the process of getting a GC, you can get your GC along with him/her without waiting.
Once they have the GC you have to wait 5-6 years.
----------

Do you know this for a fact or do you think that's the case? My wife is on a J1 and when I applied for my GC, I was told I couldn't apply jointly for her as well. And I just got my passport stamped a few weeks back. So we are pondering next steps.

TIA!
 
> My wife is on a J1 and when I applied for my GC, I was told I
> couldn't apply jointly for her as well. And I just got my passport
> stamped a few weeks back. So we are pondering next steps.

This advice was probably related to her J1 status:
-- If she has a foreign residency requirement attached to her J1, this is indeed the case. She would be blocked from filing an I485.
-- If she didn't have a foreign residency requirement, this was the single workst piece of advice you ever received.

Before your I485 gets approved, there is a way to file additional I485s for foreign born children and a spouse based on the approved I140.

(After it has been approved, there MIGHT be possibility to bring her in on the 'follow to join' pathway. But I have no idea how that works)
 
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