URGENT!!! Letter from USCIS

G

golfmvp004

New Member
Hi Lucy

Thanks for your help!! Great Service!!

I got a letter from USCIS requiring that I must return back to India to serve the 2 year HRR and gave me thirty days to explain.

My CASE:

8/92-8/96 : J-1 and Academic Training
8/96-present: H-1 (changed three employers, went to india twice and got stamped)
9/03: I-485 receipt date in EB-1A category
Work for a national lab part of DoE.

1. Since I was allowed to change from J-1 to H-1 and have gotten H-1 visa stampings several times, am I still subject to the 2 yr. HRR requirement?

2. One of my academic training was at Lawrence Livermore NL. the USCIS says that I got "money from the US" during my j-1, as a result of this training. therefore I must return back. How can I contend?

3. Can I file for J-1 waiver with DoS and remain in the country as long as that application is alive and being processed?
 
J-1 waiver, EB1-EA, and O-1 visa

I am not Lucy but I think I can you help. My answers:

1. Yes, you are still subject to INA 212(e) 2Y HRR. This is consular officer error to issue H-1B visas. Similar situations, when H-1B visas were issued for a person who was a subject 2Y HRR and I-485 was denied, were described many times at different forums (e.g., http://boards.immigration.com/showthread.php?t=183883). Persons who have ever been subject to the 2Y HRR in the past (at any time on any J-1 program), and who return home, later reentering the U.S. in F-1 or any other status (e.g., J-1, O-1) without fulfilling the requirement or obtaining waiver, remain subject to the 2Y HRR, even if a great deal of time has passed.

2. This is correct. You are subject to INA 212(e) 2Y HRR based on the direct or indirect US Government funding. Lawrence Livermore National Laboratory (http://www.llnl.gov) is the National (government) Lab (“dot gov”).

3. Application for J-1 waiver does not provide you visa status. You need to have any legal status during application for J-1 waiver.

So my advice for your case is:

i) apply ASAP for O-1 visa (‘alien of extraordinary ability’). This is employment based visa similar to H-1B, but unlike H-1B visa O-1 visa does not require J-1 waiver. However O-1 visa will be a temporary solution for you because does not eliminate that requirement. Since your I-140 petition was based on the EB1a (or EB1-EA) just update your GC petition and file with I-129 form (O-1 petition is very similar or even identical to EB1-EA). Use premium proceedings (http://uscis.gov/graphics/formsfee/forms/i-907.htm). Hopefully in two weeks you will be approved. Supposedly you and your family will need go to Canada (or India) to get O-1/O-3 visa stickers in passports after I-129/O-1 approval.

ii) During O-1 visa apply for J-1 waiver based on the NOL or IGA;

iii) Apply again for Green Card.

Believe me I know what I am writing about. My path is: J-1 + 2Y HRR -> O-1 -> J-1 waiver (NOL) -> H-1B -> EB1-OR. Read also my other posts regarding to 2Y HRR. Good luck!
 
My employer is interested to file for O-1 visa. Could you please tell your experience with O-1? How hard is O-1 for a person with following credentials:
1. One US patent filed

2. Reviewer of others work in journals (reviewd 2 journal manuscripts)

3. Founder of a nanotechnology information portal

4. 5 scientific journal publications and 2 in preparation, 3 conferences, total 40 citations

5. National Science foundation postdoc fellowship

6. Co-author of a book chapter

Thanks in advance
 
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