My elderly parents overstayed their visa for over 20 years ago under J-1 visa. Our lawyer applied for I-612 application for hardship and it is denied by USCIS. What are their current options?
They tried to seek the Chinese Embassy for a NOS, and because their application for J-visa is not current (very old) the Embassy do not have a path for them to attain their NOS. The visa waiver is the only thing keeping them from adjusting their status.
You need to confer over that with your current attorney or if no longer trust that attorney, seek a "second opinion" from a new (and experienced) one.
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When you say NOS, I think you probably mean NOL ... no objection letter.
I'm assuming that they didn't go home for the required 2 years. Unfortunately, the easiest ... but least attractive option is for them to go home now for the required 2 years.
As my colleague pointed out, you can try paying an attorney for a 2nd opinion ... but a denial of the waiver is close to impossible to overcome.
Simply put, they made a promise to go home and they broke that promise. Now the US & Chinese governments appear to be wanting them to 'make good' on their promise.
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You might be able to file for reconsideration of the extreme hardship denial, but such denials are difficult to overcome. It might also make sense to continue to pursue the No Objection statement from the Chinese Embassy, but they are notoriously intransigent. Another avenue which may be worth pursuing is an advisory opinion directly from the State Department, establishing that the 2-year home residency requirement under 212(e) does NOT apply. There are cases where the US Consulate/Embassy erroneously designates the J-1 visa holder as subject to 212(e), such as where the person paid all of all school fees through his or her funds and used no money from the government and did not study a specialized skill listed on China’s and the Department of State’s Exchange Visitor’s Skills List. An advisory opinion may establish that 212(e) does not in fact apply. Both courses of action can be pursued simultaneously. Of course, work through an attorney with experience in J-1 waivers.
Please note, the above answer is for general informational purposes only and does not create an attorney-client relationship with this attorney or her law firm. We represent clients in all 50 states and abroad.
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