J-1 Visa, HRR, and Adjustment Of Status

[Nate21224]

Hello everyone!

 

First of all some general info. My name is Nate. My wife's name is Huiying. We met in October of last year and fell in love. We were married in March and Huiying moved in with me. I have two children to another woman however, I have full legal and physical custody. We all live together and are very happy.

 

Huiying came here on a J-1 visa in January of 2012. We were under the impression that she was not subject to a 2 year home residency requirement until a couple weeks ago. (Her DS-2019 said "not subject" but her Visa said "Subject") We filed an advisory opinion and it came back (after over a 10 week wait) that she is subject. She only has one month left here according to her DS-2019 and then an additional 30 days grace period. We are unsure what to do now. I know we need to obtain a J-1 waiver but, I have recieved so much different feed back. I would say I've spoken with about 9 different lawyers over the past few months. I've done a lot of research on my own as well. I read that a requirement for a "No objection waiver" is that she has 6 months remaining on her visa.

 

So, one lawyer said "She just has to go home." Another lawyer said that we should file an exceptional hardship waiver. The estimated cost for her services and processing fees was $4,800. Another lawyer said that we should just file a "No objection waiver" anyway and see what happens. Either way Huiying will be overstaying her J1 Visa.

 

I plan on calling the Chinese Embassy tommorrow and see if they can provide me with any direction.

 

This entire Visa issue has caused so much stress between our othewise extremely happy family. I've lost so much faith in my government and lawyers for that matter. Can anyone provide us with anything that could help us in our journey? Thank you all so much. It is good to know there are others out there who have gone through similiar situations and prevailed.

[dnoblett]

It is really up to the Chinese government, the 2 year home residence requirement (HRR) has a lot to do with an investment made by the Chinese government and/or the US Government, getting a No Objection from China is rare in cases of a Student type of visa, I am not to sure about exchange visa.

 

Have you checked this page? http://travel.state.gov/visa/temp/info/info_5503.html

 

One other member (Lee VD) I know of did not fight this and his wife went back to China, served out the 2 years, and she returned to the USA on a Spouse visa.

 

If you can get the waiver, you can always adjust status by filing an I-130 and I-485 together, if you cannot get the waiver, they you will have to do as Lee did. Avoid an overstay longer than 6 months, if overstay is longer than that, it will cause more complications overcoming the 3 to 10 year bar due to the overstay.

[Nate21224]

She came here with her own money. She did not have any financial assistance from any governments. The only reason that we know that she is subject is because she falls under the classification as a teacher on her J1 Visa. This must be a "desired" classification by the Chinese government. Huiying is a preschool teacher.

 

Thank you for the link. I have looked over it a few times before. I believe I understand the process and what needs to be done for the waiver. I guess I'm hoping to find someone else who has had a similiar situation. I can update everyone after I call the embassy tomorrow.

 

Neither me or my children can imagine being apart from Huiying for 2 years. We are willing to exhaust all and any avenues before it comes down to that.

 

 

***I was told by a few lawyers that because we are married she is eligble to stay in the USA for up to 20 years without adjusting any status. The only hang up is that the two year home residency requirement trumps any and all status adjustments or changes.

Edited June 6, 2013 by Nate21224 (see edit history)

[Randy W]

J-1 Visa Restrictions

The J-1 student exchange visa, for exchange students or internships in the US, may come with a 212( e ) or HRR Home Residency Requirement. The exchange visitor must physically reside in his/her country of nationality or last residence for a total of 24 months. Until this residency requirement is met, the alien will be ineligible to Adjust Status and may be ineligible for other visas. If your fiance/wife is in the US on a J1 visa, it is important to check with an immigration attorney before filing a visa petition, I-485, or I-130, as these will NOT over-ride the J visa restriction. It is possible to apply for a waiver under certain circumstances.

 

 

It doesn't look good -

 

 

4. Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor:

If you can demonstrate that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you may apply for an exceptional hardship waiver. Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship. This waiver basis requires that you submit Form I-612, Application for Waiver of the Foreign Residence Requirement, directly to USCIS. USCIS will forward its decision directly to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of exceptional hardship.

 

 

Frequently Asked Questions - Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement

 

 

1. No Objection Statement:

Your home country government may issue a No Objection Statement through its embassy in Washington, DC directly to the Waiver Review Division that it has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of you becoming a lawful permanent resident of the U.S. The No Objection Statement may also be issued by a designated ministry in your home country’s government and sent to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country. The U.S. Embassy would then forward it directly to the Waiver Review Division.

 

[Nate21224]

The only hang-up that I've heard about the "no objection waiver" is that some people say that the applicant must have 6 months remaining on their visa to be considered. Does anyone have any expierence with obtaining a J1 waiver out of status?

Edited June 6, 2013 by Nate21224 (see edit history)

[tsap seui]

Buddy I don't have a clue what a J-1 visa is much less have any advice on what to do.

 

I can only offer you the words "good luck" in your endeavor. I hope it works out well for you and your family.

 

tsap seui

[Nate21224]

Haha thanks tsap seui. I will try to document as much as I can on this site as we go. That way incase some fellow like myself stumbles upon this site via google (like me) they will have some info to read.

 

I am calling the Chinese embassy tomorrow to see if they will entertain an application for a no objection waiver under Huiying's circumstances. Depending upon what they say our plan is to file a no objection waiver. If that is denied we will file an extreme hardship waiver. Huiying's 2 year absence will not only effect me (US citizen) it will greatly effect the lives of both of my children (also US citizens).

 

http://www.china-embassy.org/eng/sgxx/lxwm/

Edited June 6, 2013 by Nate21224 (see edit history)

[Randy W]

Yes - we have seen other J-1's, but not more than 1, or 2, or 3 - and none have posted as much detail as you already have. Hopefully, you'll keep us up to date on your progress.

 

Thanks

[Randy W]

I see that the waiver fee is $215 - quite a bit less than what the lawyer is asking.

[Nate21224]

Yes Randy. $215 is just for the "no objection waiver" filing fees with the government. It is a somewhat common and easy form for the j1 visa. Most people who come here are told to file for the waiver after about one year here. That way if they decide to stay or change status they will encounter much less problems.

 

The $4, 200 in lawyer fees plus $600 for filing fees is for an "exceptional hardship waiver". This waiver would state that if my wife would need to fulfill her requirement it would create extreme hardship for me and my children. This statement would require many affidavits of support from many people. We basically would have to build a case against the HRR and back it up with evidence. It is much more work therefor much more expensive.

 

Everything I've read says you can file a no objection waiver and if it is denied you can file another type of waiver without problems or complications.

[dnoblett]

One thing I will point out about overstay without adjusting status, she will be unable to get a work permit and legally take a job. Probably will be unable to get a SSN. And so on.

Many have dealt with the long separation when doing a visa, the US Citizen ends up visiting China once or twice a year. I would peruse the waiver, however if that proves fruitless, I would avoid an overstay longer than 6 months and go through the process of getting a spouse visa.

VJ has an extensive forum on Waivers you may want to look through: Waivers (I-601 and I-212) and Administrative Processes (221g)

[Randy W]

Here's a thread that may be of interest - I don't see anything directly applicable to your case, but you may find it helpful - http://immigrationvoice.org/forum/forum6-non-immigrant-visas/1596983-j-2-to-h1-b-change-of-status-its-possible.html

[Nate21224]

Thank you guys.

 

dnoblett Because she has a J1 Visa she already has a SSN. I know she will be unable to legally use it once she is out of status though. The upside is that she is a Chinese teacher at a preschool. During her time here she has gathered many contacts. The amount of people in the USA willing to pay a chinese teacher under the table for Babysitting/teaching is insane. We were hoping that worse case scenario she could continue doing this while out of status. I read that once we file the adjustment of status petition we could request a reciept and that she would be able to legally work while the case is pending. Is this true?

 

After a few phone calls I found the person to talk to. Her name is Xin Jinhua at the Chinese Department of Education at the Chinese Embassy in Washington D.C. Her number is 202-243-1158 Unfourtunatly, she is out of office until Monday. I was told it is highly preferred that you are a mandarin speaker when calling the embassy. Most of their english is okay but, they seem to be friendlier and more helpful when speaking their preferred language. I also started another thread http://immigrationvoice.org/forum/forum106-non-immigrant-visa/3095221-j-1-visa-and-hrr-waiver.html#post3573268 I am unable to access VJ on my work firewall I will check it out when I get home.

Edited June 6, 2013 by Nate21224 (see edit history)

[dnoblett]

Yes, when you file an I-485 to adjust status, you can also file an I-765 for an EAD which tends to be valid for up to two years allowing employment, it can also be used to apply for a driver's license. Most states will not issue a DL without two things, evidence of legal presence (EAD or Green-card) and SSN.

[Nate21224]

Great! Thank you dnoblett. One other thing we have going for us is that she was able to obtain a drivers permit 8 months ago. In a couple of weeks she has her drivers test and she can recieve her license. We are hoping they don't say anything about her only have a month or so left on her stay here when they do the paper work.