Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.
Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.
J-1 Physician in Waiver Job Applying for AOS/1-485Detailed question:
I am a physician completing my J-1 waiver ( on H-1B now in US, waiver will finish by June 2015). My wife became a U.S. citizen few months ago and she has filed I-130 for me. If I-130 is approved, do I have to wait till June 2015 to apply for adjustment of status or can I apply sooner ? If I have to wait till June to apply for I-485, will I be able to get EAD right away or will I need to be on H-1 for a while I-485 is accepted ?Answer:
See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
The way it works is physicians when they have J-1 they get a waiver job like Conrad 30 program or through veteran's administration any one of these things. They are working on completing their waiver job typically 3 years. So the question is when can I file I-485? This comes up very frequently in the context of physician, both when they are trying to do EB-1 or National Interest Waiver. In this case applying for his wife. The answer is you cannot file I-485 until your 3 years of waiver is complete. Even if you file 1 day early your I-485 will be rejected. So until your waiver is complete you cannot file I-485.Add new comment
J-2 Dependent Changing to Other Working VisaDetailed question:
Can a J-2 dependent (Canadian citizen) change to other working visa or have to change to H-4 when J-1 gets waiver and moves to H-1. Basically any hope for a spouse on J-2 to get work authorization (TN/H-1/investor visa) before the 3 year waiver is complete?Answer:
Yes, the J-2 can, UNLESS the J-1 holder is a physician serving the three years for J-1 waiver.Add new comment
Immigrant Intent in Issuance of J VisasDetailed question:
I was in US from 2003 on F-1. I finished my Ph.D. here and changed to J-1 Status. I want to travel during 2012 summer, but need to go for J-1 Stamping. Do you think it will be a problem? Is there a chance that I might be stopped because of 214(b)?Answer:
Immigrant intent is definitely a consideration for issuance of J visas. As to whether or not you may have a problem is impossible to predict. If you can have a safety net of an H-1 (if needed), you would be better off.Add new comment
Home Residency Requirement for Second VisaDetailed question:
I got a J-2 visa and my wife on J-1 recently in which we have never travelled to US yet. Now my employer is ready to apply a L-1B for me and my wife L-2. Is this possible? Or will I be subjected to 2 years home stay restriction which is applicable for J visa without travelling on J. Will it be a problem in US consulate when I appear for L-1 visa as me and my wife have J-2 and J-1?Answer:
If I remember correctly, 212(e), the HRR, does not apply till you actually use the visa.Add new comment
Canadian with J-2 visaDetailed question:
I am a Canadian with J2 visa. I am an engineer and want to work in US to keep up with my career. I am going to apply for EAD. If I don't get, can I switch from J2 to TN. Can my kids still stay on J2?Answer:
You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.Add new comment
J-1 extension beyond 5 yearsDetailed question:
My J-1 at Cornell Psychology Department expired on Aug 31 2011 after 5 years. Currently I'm spending my grace period. I'm exempt from the 2 years rule. I was wondering if it could be further extended. If not, would it be possible for my department to issue a new DS-2019 (J1) instead? I have only been working here for about a year and have been at a different university before.Answer:
Extension is possible only if the program rules permit it. The worst case scenario in extension or new 2019 as I see it can be only that you have to go get a new via stamp.Add new comment
J-2 holders and work authorizationDetailed question:
Can I use my J-2 visa for internship and work after completion of FPGEE?Answer:
J-2 holders can get work authorization and work as per the licensing requirements of their profession.Add new comment
J-1 Waiver PendingDetailed question:
I applied for my waiver in Aug 09 from the US and sent completed DS 3035 to the Waiver Review Div. in St. Louis, MO and Indian Embassy in DC. I returned to India in Sept 09.I have not had any updates since then. I would like to know (1) If I have missed any steps and if that is the reason why my waiver status remains unchanged (2) If I HAVE TO and can still apply for the NORI and obtain my waiver since I already have my case number and barcode (3) If I apply for the NORI from India, where do I send the Statement and Affidavit for attestation? (4)Are there any additional steps for waiver from India?Answer:
Contact the Waiver Review branch in USDOS first. Figure out what is going on with your pending case. You cannot apply for more than one type of waiver at the same time.Add new comment
J-2 visa and I-275Detailed question:
My spouse is J-1 and is in US and I want to apply for J-2 to enter US. But 10years back I was denied entry in US on my B1/B2 Visa with I-275 executed stamp on my passport because in my last stay in US I attended college for a semester on B1/B2 visa. So I need to ask are there chances that I will get a J-2 visa to join my spouse?Answer:
It is entirely in the discretion of the consular officer whether or not to give you a J-2 visa. Impossible to predict.Add new comment
H-1 for Canadian PR with J-1 issueDetailed question:
I am presently in Canada on Canadian PR (and have an indian passport). An employer in Indiana (from a hospitality background) is interested in hiring me. 1. They have no clue abt H1B visa. How do I proceed? 2. I was on J1 from 2000 to 2001. I do not have a waiver. Will this affect my application?Answer:
If you have neither complied with the J-1 home residency requirement, nor obtained a waiver, you cannot get an H-1. Make sure you are indeed subject to the 2-year HRR. You may not be - then an H-1 is a possibility. Go here to ask DOS for an advisory opinion: http://travel.state.gov/visa/temp/info/info_1288.htmlAdd new comment
I was on J-1 visaDetailed question:
I was on J-1 visa for 18 months of training in a dental lab as a dental technician .I got my waiver on my J-1 visa .I came back from USA to India and applied for the F-1 visa in a community college .But I was denied f-1 visa on bases of section 214(b) of immigration (possible immigrant).What can I do next to get back to USA?Answer:
If the consulate is not convinced of your nonimmigrant intent (214(b)), it is extremely difficult to remedy that. Usually, people in that situation should explore options like H-1, L-1, green card - all of which do not require a nonimmigrant intent (intention to remain in USA only for a brief period of time).Add new comment
Travel during H4 processingDetailed question:
I am on J-2 visa. This is likely to expire soon due to my spouse changing her visa from J-1 to H1.I want to apply for H4 if I can travel outside USA during the application(processing) period.Answer:
If you travel during change of status, the request for COS is deemed to be abandoned.Add new comment
H-2B VisaDetailed question:
I'm on a J-1 visa right now, but I leave the US in 16 days. I have a job offer to come back and work here, can I apply for the H2-B visa before I leave the US? So that I could come back right away? Or don't even needing to get off the the country?Answer:
Assuming you have no home residency requirement, you can start the H-2B process even while you are here in USA.Add new comment
File I-485 while J-1 waiver is pendingDetailed question:
I am currently in the US under the VWP which expires March 15. I was about to apply for a marriage-based GC but I just found out that I am subject to 2-years HRR. I applied for a waiver (no objection). A lawyer told me today that I should still file the I-485 and just leave the question "subject to" blank or check "yes" and add "waiver pending". Is that going to work? I don't want to overstay the VWP. How many days does it usually take to find out that I-485 submission got accepted and I can legally overstay the VWP?Answer:
To the best of my knowledge that information is incorrect. You can file AOS only after the waiver is approved.Add new comment
I have a R J-1Detailed question:
I have a R J-1 i am not subject to the two year rule or section 212 (E). Do i have to leave the country if i adjust my status through marriage? I was advised that i should leave the country for at least 60 days and have my interview in my country. Is this correct?Answer:
I see no reason to leave. The 60-day advice makes sense only if you have just entered USA.Add new comment
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?Detailed question:
May B-1/B-2, E-1, E-2, F-1, H-1, J-1, L-1 O-1 visa or TN holder apply for green card?Answer:
One of the questions I am asked quite frequently is whether or not an E-1/E-2 visa holder can apply for a green card and not jeopardize his or her E status. The answer is PROBABLY yes he can.
In the E visa context, this is what the govt says:
9 FAM 41.51 N15 INTENT TO DEPART UPON TERMINATION OF STATUS
An applicant for an E visa need not establish intent to proceed to the United States for a specific temporary period of time. Nor does an applicant for an E visa need to have a residence in a foreign country which the applicant does not intend to abandon. The alien may sell his or her residence and move all household effects to the U.S. The alien's expression of an unequivocal intent to return when the E status ends is normally sufficient, in the absence of specific indications of evidence that the alien's intent is to the contrary. If there are such objective indications, inquiry is justified to assess the applicant's true intent. As discussed in 9 FAM 41.54 N4, an applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf. However, the alien might satisfy the consular officer that his and/or her intent is to depart the United States upon termination of status, and not stay in the United States to adjust status or otherwise remain in the United States regardless of legality of status.
So, are they saying they will apply the same standards as given in the note below? I THINK that is what they are saying, but this is not clear.
9 FAM 41.54 N4 ISSUE OF TEMPORARINESS OF STAY
L aliens are specifically excluded from the intending immigrant presumption of section 214(b) of the INA and are, furthermore, not required to have a residence abroad which they have no intention of abandoning. In addition, INA 214(h) provides the fact that an alien has sought permanent residence in the United States does not preclude him or her from obtaining an L nonimmigrant visa (NIV) or otherwise obtaining or maintaining that status. The alien may legitimately come to the United States as a nonimmigrant under the L classification and depart voluntarily at the end of his or her authorized stay, and, at the same time, lawfully seek to become a permanent resident of the United States. Consequently, the consular officer's evaluation of an applicant's eligibility for an L visa shall not focus on the issue of temporariness of stay or immigrant intent.
There exists in law something called the "doctrine of dual intent." This doctrine permits nonimmigrants to have immigrant intent. In other words, even though, you are coming to USA on a visa that is temporary, you may pursue your green card (exhibiting intent to live in USA permanently).
By law, L-1 and H-1 holders are PERMITTED by the doctrine of dual intent to have their green cards pending. This is beyond question. That your green card application is pending can never be a ground for denial of your H or L visa application (includes H-4 and L-2).
As I have noted above, E-1, E-2 visas have an unclear situation. It appears the consulates WILL permit them dual intent, but may not(???). They do NOT have the same level of protection as H and L visas but usually consulates will permit dual intent.
The following visa types have no such protection and their vise or entry into USA can be denied if they have a green card application application in process: B-1, B-2, F-1/F-2, J-1, J-2.
O-1 is allowed to have an immigrant intent (by regulations - though not by statute).
Pursuant to 8 CFR Section 214.2(O)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
TN is also not allowed dual intent, but are often not questioned on their green card pendency.Add new comment
Can F/J holders apply for green card?Detailed question:
I am on F-1/J-1 visa (student visa). Can I apply for green card (Permanent Residency)?Answer:
There is no law that prohibits an F-1, J-1, F-2, or J-2 visa holder from applying for a green card directly. But as a practical matter it takes a long time to obtain a green card in most cases. Therefore, even if you begin your green card process while you are on F or J status you will probably be required to convert to H-1 due to lack of time. Conversion to H-1 during green card pendency is no problem.
One more issue that you have to bear in mind is that F and J visas do not allow you to possess immigrant intent. Therefore, if you travel abroad during the pendency of the green card or if you need to obtain F or J visa stamped, you could have trouble because filing for green card you would have established immigrant intent.
Do physicians have the right to an extension beyond 6 years for waiver jobs?Detailed question: Answer:
1. I am curruntly on HIB Visa for the past 5yrs and 2 months (GC process started and 1-140 approved) working for a State Health Department.
Being a medical doctor from India i will be starting my medical residency from July on a J1 Visa. Once i complete my 3yr Medical residency and apply for J1 Waiver in 2012 (for working in medically underserved area), will the duration of HIB i am using up now (almost 5 and half years) effect the Physician HIB offered as a part of J1 waiver.So, will the 'JI Waiver Visa' be entirely different type of HI visa with a new 3yr time period or will i have only 6months of HIB left at that time(due to 6yr limit)as i am right now using up 5 and half years by June. Please advice.
Ans. Your total limit of H-1 is still 6 years, Ravi. There is no special provision for physicians. But you may be able to leverage your green card for extensions beyond six years.
2. How to leverage the I-140 to get H-1 extensions?
Ans. When your I-140 is approved and your priority date is backed up, you are entitled to a 3-year H-1 extension even beyond 6 years of your H-1. This extension should be given even if the H-1 extension is for an employer other than the one who sponsored your green card.
3. Is an approved I-140 ground for an automatic denial of J visa?
Ans. No. But, it makes the grant of a J-1 very difficult because you have exhibited immigrant intent. J-1 visa (unlike H or L visas) does not permit you to have immigrant intent. The matter is totally in the discretion of USCIS or the consulates.Add new comment
Fulfilling J-1 HRR in installments - not possibleDetailed question:
I have been issued F1 and I fulfilled only 1 year of my previous J1 HRR. It was not difficult to get it once you show all the funding documents from school. I have another question though. I am on a PhD program now. If I decide to stay in my home country for 3-months periods several times - can I fulfill my second year of HRR in that way? The question is does it have to be consequent or I can split it like this?Answer:
You cannot do that as far as I know. The HRR has to be in one solid 2-year chunk. Brief absences - a week or two may be permitted but should be made up by spending that much extra time in your home country.Add new comment
B visa while GC pending or similar situationDetailed question:
After a long-term relationship, earlier this year I married a U.S. citizen. I do not want to change my immigration status and do not wish to immigrate nor reside permanently in the United States since we both have steady jobs outside the U.S. and I do not want to leave my country. All I want is to be able to travel temporarily into the U.S. for pleasure and leisure as most tourists do, once or twice a year for a couple of weeks each time. I want to know if I can just apply for a new B-1/B-2 tourist visa to travel into the U.S. or if my husband needs to file an I-130 petition for alien relative and I-129 and K visa thereafter instead –which I understand would be the right process if I ever wanted to adjust status or become a U.S. permanent resident.Answer:
This is upto the discretion of the consulate and then again upto CBP when you land in USA. Consulates have the discretion to issue you a B visa - despite your presumed immigrant intent - if they are convinced that you will return. This is true for all cases where a B (or F or similar) visa is sought while GC is pending or could be pending.Add new comment
Does J-1 HRR Prohibit Issuance of F-1?Detailed question:
If someone came to the US on a J1 visa with a residency requirement of two years and that person returns back to the home country and then would like to return to the US on an F1 visa to continue a master's degree, can a visa be issued before the residency requirement is completed and does the new F1 visa if given, get rid of the J1 residency requirement?Answer:
The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.
Issuance of an F-1 does NOT waive the HRR. You will stay subject to it.Add new comment