Urgent Advice Needed

[Nathan&Min]

A little background: We met in 2014 when she was teaching Chinese at a local high school (sponsored through the Confucius Institute/Hanban), and so she was on a J-1 Visa.

 

We got married as soon as we got to China, and we are just living here and working. We were planning on doing a DCF in Guangzhou on Jan 5, but come to find out that she has 202e condition on her J-1 visa which says that you have to stay in China for two years before immigration to the USA. (This is at least what her previous US visa says, but her DS 2012 form does not mark or apply that she is under this condition of having to stay in China for at least 2 years before reapplying to go to the US).

 

 

We could possibly get a waiver from the Chinese government, then apply for the waiver from the US Government, or we can wait out the 2 years, which is all the way until July of 2017. What advice would you give us at this point?

[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.

Sounds like a waiver may be difficult, but you might look into it, INCLUDING by checking with an immigration attorney.

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

 

Five Bases for Recommendation of a Waiver

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 United States. 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.

 

. . .

 

[Randy W]

A topic from someone who went through the waiver process successfully - this topic should tell you everything you need to know, EXCEPT for what complications you might experience when applying from China

 

http://candleforlove.com/forums/topic/45839-j-1-visa-hrr-and-adjustment-of-status/

Edited December 29, 2015 by Randy W (see edit history)

[Nathan&Min]

Unfortunately, it looks like it is next to impossible to receive a waiver for this condition once you have left the USA. My wife searched about half the internet on the Chinese forums similar to this site, and everyone said that the Chinese Government will not issue a waiver once you have come back to China. I guess this immigration process has turned into a 2 year process now. Supposedly I can still go petition for her and just have schedule her interview around a year from now, and they can issue the visa for AFTER the the condition is removed?

 

Any advice? Is there any expiration on the petition or should I just wait to petition at a later time?

[Randy W]

Unfortunately, it looks like it is next to impossible to receive a waiver for this condition once you have left the USA. My wife searched about half the internet on the Chinese forums similar to this site, and everyone said that the Chinese Government will not issue a waiver once you have come back to China. I guess this immigration process has turned into a 2 year process now. Supposedly I can still go petition for her and just have schedule her interview around a year from now, and they can issue the visa for AFTER the the condition is removed?

 

Any advice? Is there any expiration on the petition or should I just wait to petition at a later time?

 

 

Your petition will be held at the consulate for one year. My guess is that you won't be able to schedule an interview until the 2 year period is up, or get the visa until that time.