Hello , I would like to apply for a J - 1 waiver of the 2 year home country requirement . I came into the USA for graduate school 4 years ago and changed my status to J - 1 Research for post graduation work . This was done within the US and I haven't left the US since entering 4 years ago . Does adjusting status within the US from F - 1 to J - 1 Research impact on DOS / USCIS decision to approve a J - 1 waiver ? What are the main issues considered by USCIS in approving a waiver ? Thanks very much in advance for your input .
You switching status from F1 to J1 will not impact the waiver application. However, are you sure the 2 year waiver requirement applies to you? Even if stated in your documents, it still may mean there was an error made and you are not subject to the requirement. Only certain J1 visa holders should be subject to the 2 year residency requirement. If in fact your document reflect a 2 year residency requirement and it's an error, you would need to seek an Advisory Opinion. I suggest you contact an immigration attorney who will be able to review your documents and advise you accordingly. Good Luck.
I agree with my colleagues. You should contact an immigration lawyer, especially since many of us offer a free consultations and have an office nearby. Good luck to you.
Dean P. Murray
The Murray Law Firm
560 Sylvan Avenue
Englewood Cliffs, NJ 07632
I think you mean changing status from F-1 to J-1 inside the United States, not “adjusting status.” Adjustment of status is the name for the process when one files a green card application along with associated applications.
There are three ways you can become subject to the two year foreign residence requirement. These are: (1) government funding (both U.S. or foreign government funding); (2) home country skills list; and (3) graduate medical education.
Note that annotations on DS-2019s and visa stamps are sometimes incorrect and are not legally binding. One needs to perform a legal assessment on the nature of the program to determine whether and why someone is subject to the requirement.
Being subject to the two-year foreign residence requirement creates three legal disabilities that do not go away until you obtain a waiver or fulfill the requirement. These are: (1) you cannot apply for H or L visa stamps; (2) you cannot apply for green card; and (3) you cannot apply for an immigrant visa. Additionally, if you are subject, you cannot change your status from J-1 to any other non-immigrant status, except A or G visa status.
There are four kinds of waivers. These are: (1) no objection; (2) hardship; (3) persecution; and (4) interested government agency waivers, of which there are many varieties.
You indicate your intention is to apply for a no objection waiver. This will not work if you participated in graduate medical education in J-1 status. Additionally, if your program was funded by the U.S. government, this kind of waiver will likely not work, although I’ve seen in work in a few cases.
The initial question is why you are subject. If you are not subject based on U.S. government funding and/or you didn’t participate in graduate medical education you can move forward with a no objection statement.
The fact that you changed status from F-1 to J-1 should have no impact on your waiver application.
The USCIS doesn’t consider anything (aside from possibly background checks depending on what country you are from) in a no objection waiver application. If the Department of State Waiver Review Division (WRD) issues a favorable recommendation, the USCIS will approve the waiver application. If the WRD issues a “not favorable recommendation,” the USCIS will deny the waiver application. There is no appeal from that decision. The WRD assesses program, policy, and foreign relations considerations. These considerations are a little too complex to discuss in this response.
Because of the complex nature of the above inquiries, I suggest you consult with a lawyer that is experienced in J-1 matters.
Hake & Schmitt
Attorneys at Law
P.O. Box 540 (419 Main St.), New Windsor, Maryland 21776
Required Disclaimer: This information is generalized and should not be relied upon as legal advice; and this communication does not create an attorney-client relationship.
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