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Can I get H1-B even if my J-1 visa requires me to stay in my home country for two years?

Palo Alto, CA |

I came to the U.S. in 2007 on J-1 visa as an exchange student to American hight school. The J-1 visa on my passport says that I have to stay in my home country for 2 years (212-e).
Directly after finishing my exchange year (June 2008), I went to my home country for three months to get F-1 visa, which I did (in September 2008). I finished college last May and currently I am on OPT, which is extendable up to 29 months. My biggest concern at the moment is, can I get H1-B visa or do I have to stay in my home country for two years, which I don't want to.

Attorney Answers 3

Posted

You can get an H-1B but you will not be able to adjust status to permanent residence later on, unless and until you first obtain a waiver to your 2 year home country residence requirement .

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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Asker

Posted

Understood. Thank you Giacomo. So even once I get H1-B then I have to go home for two years which will destroy my chances of getting residency here in States, right? The program through which I obtained J1 visa was sponsored completely by U.S. government. What are are chances of waiving it. Do I start with my home country embassy by obtaining "No objection letter",or with the U.S. government...(sorry, if my question is not too specific)?

Giacomo Jacques Behar

Giacomo Jacques Behar

Posted

Right. Go to the DOS website to see the instructions for filing a waiver. You'll need to retain an attorney if those look confusing. I hope my answers were helpful.

Posted

Hello,

I checked on this and you can only get an H-1B by obtaining a visa outside the U.S., not a change of status. With the time that you have on OPT, I would suggest that you obtain a waiver now so that you have more flexibility in the future to change status or adjust your status to permanent residence.

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Posted

Thank you Laurie. So I can only obtain H-1B if I am already in home country and not in the U.S. The thing is, I talked to a lawyer and he said it seems really hard to obtain a waiver especially because the exchange program was sponsored by U.S. government. Also that it may be harder to waive this policy than to apply for asylum.

Laurie Ann Bonilla

Laurie Ann Bonilla

Posted

You're welcome. Your employer can file an H-1B petition for you, and after it is approved, you can leave the U.S. to obtain your visa. As to the waiver, If I were you, I would try another attorney who has many years of experience with these waivers from your country and see if they can find a way. And I would start right away.

Asker

Posted

Thank you so much Laurie. I sincerely appreciate your advice. But the problem even after getting H-1B will be to get residence here in States, right, considering I am not able to waive the two year policy. Since you are located so close (I am from Palo Alto), do you think you will have time to look at my case. Thank you

Laurie Ann Bonilla

Laurie Ann Bonilla

Posted

Hi again. Unfortunately, I do not handle J-1 waivers. Please email me directly and I will refer you to someone who you can consult with. bonilla@bayarea.net

Posted

You most likely will need a waiver.

Your employer needs to retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise them, and handle the case.

J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.

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