I'm a foreign student and I had a J-1 Visa from July 2016 to October 2016. It was a 3 months exchange program and I was funded by my own government. So my visa and the DS-2019 had the "2-year" rule.
Later on, from Aug 2017 to Dec 2019, I finished my master degree as a F-1 student. In the mean time, my J-1 visa on the passport was "cancelled without prejudice".
Now, I found a job in the US and I was wondering if I need to waive the J-1 2-year rule in order to apply H-1B?
H1B is not an immigrant visa and does not trigger 212(e) or two years bar. However, if H1B visa holder decides to adjust her status and get Lawful Permanent Resident (AKA green Card) then two years rules triggers.
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212e includes the limitation to obtain a H1B. You need to waive the J-1 2-year rule in order to apply H-1B. 9 FAM 302.13-2(B)(1)(b) Two-Year Residence Abroad or Waiver Requirement: An exchange visitor who is subject to the requirements of INA 212(e) is ineligible to apply for the H, K, or L nonimmigrant visa (NIV) categories, an immigrant visa (IV), or permanent resident status until he or she has complied with the foreign residence requirement or a waiver of that requirement has been favorably recommended by the State Department and then approved by Department of Homeland Security (DHS). (See 9 FAM 502.7-3(C)(6) for applicability of INA 212(e) to K visa applicants.)
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Yes, you would need to return to your country for 2 years or obtain a J waiver in order to obtain an H-1B visa under INA 212(e).
Carl Shusterman (former INS Trial Attorney, 1976-82) has 40+ years of experience practicing immigration law. He is a Certified Specialist in Immigration Law who has testified before the U.S. Senate Immigration Subcommittee as an expert witness. He was featured in the February 2018 issue of SuperLawyers magazine. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
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