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J1 holder but expired 3 years ago.

Anderson, SC |

I am a J1 holder, expired 3 yrs ago, got married before, but divorced before I even get my green card. I have a fiance, and we had been living together for almost 3 years now. Can you help me on what to do next? I am hoping to get this resolved also with Obama's plan. What the requirements and can I do this myself or do I need an attorney?

Attorney Answers 5

Posted

I agree. The attorney will need all copies of your DS-2019's and J-1 visas to determine whether you are subject to the 2-year foreign residency requirement. If not clear, then an Advisory pinion can be sought from the Department of State.


Lynne R. Feldman, Attorney at Law
Concentrating in Immigration and Nationality Law
2221 Camino Del Rio South, Suite 201
San Diego, CA 92108
phone: (619) 299-9600, facsimile: (619) 923-3277
email: lynne@feldmanfeldman.com
website: www.immigrateme.com

Formerly Adjunct Professor -- Immigration law
University of Illinois College of Law

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4 comments

Asker

Posted

Thank you for the response. I already did the Advisory Opinion but got denied.

Lynne Rogers Feldman

Lynne Rogers Feldman

Posted

I assume by denial you mean you are subject to the 2-year foreign residency requirement. Next step would be then to see if you are eligible for a waiver -- No Objection, Persecution, Hardship, or Interested Government Agency.

Asker

Posted

Thank you so much that really help me.

Lisa R. Brenman

Lisa R. Brenman

Posted

I agree with this analysis. The two-year home residence requirement prevents you from adjusting to green card unless you obtain a waiver or satisfy the two-year home residence time period.

Posted

First issue is whether or not you are subject to INA 212(e) the two year home residency requirement. Check the visa stamp in your passport. The next issue is the immigration status of your fiance. If your fiance is a U.S. citizen and you are not subject to the HRR, then you can marry and file to adjust status and get your green card. I suggest you determine the above and fully discuss with counsel.

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Asker

Posted

Thank you for the quick response, I am subject to INA 212(e), my fiancee is a US citizen.

Philip Alan Eichorn

Philip Alan Eichorn

Posted

You'll need to get a waiver of the two year HRR or a no objection statement from your country before you can adjust status. I highly recommend you get started on that now. This is routine for most experienced immigration practitioners and I encourage you to retain one.

Asker

Posted

Would that be ok even if I overstayed, to get a waiver?

Lisa R. Brenman

Lisa R. Brenman

Posted

You should apply for the waiver of the home residence requirement and hopefully, you will obtain the No Objection letter from your country.

Posted

I agree with my colleagues.

This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.

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Posted

What needs to be done depends on whether or not you are subject to the 2 year foreign residency requirement, whether you have married a US citizen, etc.

You should retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise you, 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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Posted

As many of my colleagues have pointed out, you must first determine whether you are subject to the two-year foreign residence requirement. There are three ways you can become subject. These are: (1) government funding (U.S. government funding and foreign government funding. It is very difficult to obtain any kind of J-1 waiver if U.S. government funding is involved); (2) skills list; and (3) graduate medical education. An independent legal evaluation of whether you are subject should be performed. Note that annotations on DS-2019s and IAP-66s and visa stamps are sometimes incorrect and are not legally binding. For this reason, I recommend you consult with an immigration lawyer that has experience in J-1 waiver matters.

One colleague mentioned that if there is a question as to whether you are subject, you may want to seek an advisory opinion from the Department of State. I would caution you on this approach because, in practice, the Department of State errors on the side of finding people subject even when they may not be. This could create problems with a future adjustment of status application. This is why it is critical to have a lawyer experienced in J-1 waiver matters determine whether you are truly subject.

Being subject to the two-year foreign residence requirement creates three legal disabilities. If you are subject to the two-year foreign residence requirement: (1) you can’t apply for an immigrant visa; (2) you cannot apply for adjustment of status; and (3) you cannot apply for an H or L visa stamp.

I believe it is unlikely that the proposed comprehensive immigration reform being discussed by Congress will have any impact on whether your are subject to the two-year foreign residence requirement.

If you are subject, the next step would be to consider what waiver options are available. If you are not subject, you would then need to determine what pathways are available to normalize your immigration status.

Brian Schmitt
Hake & Schmitt
Attorneys at Law
P.O. Box 540 (419 Main St.), New Windsor, Maryland 21776
Phone: 410-635-3337
http://www.hake.com/pc/

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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