Question about J1 Visa Home Residency Requirement and Chinese National

[LovingYou]

Hello all,

 

I have a question about J1 Visa Home Residency Requirement <INA 212(e)>.

It stated:

"It is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States"

For Chinese national who has passport issued by People's Republic of China government and have a J1 visa subject to the 2-years rule of HRR.

Based on the INA 212(e), does it mean that such Chinese J1 visa holder can reside in any part of the China in order to satisfy this 2-years rule of HRR?

For example, if the J1 visa holder's home town is Beijng, China. Can he/she reside in Shanghai or even in Hong Kong, after departure from United States, in order to satisfy the HRR?

I am particularly interested whether residing in Hong Kong would be allowed to satisfy the HRR by a Chinese national (with passport issued by People's Republic of China government).

Is Hong Kong considered part of China by USCIS or States Department?

 

Thank you for your help.

[Greg.D.]

Not an expert, but I am reading:

 

".... such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States"

 

i.e. COUNTRY

 

OR

 

his last residence, meaning any country he/she LAST lived in.

[Randy W]

From the INA

 

(d) Notification to alien concerning 2-year foreign residence requirement. Before the consular officer issues an exchange visitor visa, the consular officer must inform the alien whether the alien will be subject to the 2-year residence and physical presence requirement of INA 212(e) if admitted to the United States under INA 101(a) (15) (J) and, if so, the country in which 2 years' residence and physical presence will satisfy the requirement.

 

 

 

I would say that it sounds like it is simply a matter of them looking at the visa stamps and/or Entry/Exit dates in your passport and that a stay in Hong Kong would NOT qualify as time in China.

 

It's not clear, however, how you could get a definitive legal opinion. You can request an Advisory Opinion from the State Dept., but it's not clear that they would state as to whether a stay in Hong Kong would qualify for time in China. Again, my guess is that it would not qualify.

Edited September 19, 2016 by Randy W (see edit history)

[Randy W]

It's not clear to me WHO has an interest in enforcing the two year HRR, and WHY, or specifically HOW it is enforced. If it IS simply a check of the Entry/Exit dates from the home country, then you have your answer right there. You might do some research into that and waivers of the requirement - this looks like a good article to start with: http://www.klaskolaw.com/article/understanding-the-two-year-home-residence-requirement-and-waivers-2/

 

If it's the 'home' country that releases you from the HRR, you might check with the Chinese embassy. Somehow, though, I have my doubts that you would get a definitive answer there.

[dnoblett]

Hello all,

 

I have a question about J1 Visa Home Residency Requirement <INA 212(e)>.

 

It stated:

 

"It is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States"

 

For Chinese national who has passport issued by People's Republic of China government and have a J1 visa subject to the 2-years rule of HRR.

 

Based on the INA 212(e), does it mean that such Chinese J1 visa holder can reside in any part of the China in order to satisfy this 2-years rule of HRR?

 

For example, if the J1 visa holder's home town is Beijng, China. Can he/she reside in Shanghai or even in Hong Kong, after departure from United States, in order to satisfy the HRR?

 

I am particularly interested whether residing in Hong Kong would be allowed to satisfy the HRR by a Chinese national (with passport issued by People's Republic of China government).

 

Is Hong Kong considered part of China by USCIS or States Department?

 

Thank you for your help.

 

You mentioned in an earlier thread getting no objection statement form a Chinese Embassy.

 

Is your fiancee still in the states on the J-1?

If she is in the states, doing what? Some occupations tend to be less of an issue getting a no objection waiver from China, like au pair.

If she is still in the states, why not marry and try getting a no object waiver and then adjust status, and if cannot get the waiver, simply file an I-130 for a spouse visa and have her return to China and wait out the 2 years, the resulting visa and green card would be an IR-1 and a 10 year green card.

[LovingYou]

 

Hello all,

 

I have a question about J1 Visa Home Residency Requirement <INA 212(e)>.

 

It stated:

 

"It is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States"

 

For Chinese national who has passport issued by People's Republic of China government and have a J1 visa subject to the 2-years rule of HRR.

 

Based on the INA 212(e), does it mean that such Chinese J1 visa holder can reside in any part of the China in order to satisfy this 2-years rule of HRR?

 

For example, if the J1 visa holder's home town is Beijng, China. Can he/she reside in Shanghai or even in Hong Kong, after departure from United States, in order to satisfy the HRR?

 

I am particularly interested whether residing in Hong Kong would be allowed to satisfy the HRR by a Chinese national (with passport issued by People's Republic of China government).

 

Is Hong Kong considered part of China by USCIS or States Department?

 

Thank you for your help.

 

You mentioned in an earlier thread getting no objection statement form a Chinese Embassy.

 

Is your fiancee still in the states on the J-1?

If she is in the states, doing what? Some occupations tend to be less of an issue getting a no objection waiver from China, like au pair.

If she is still in the states, why not marry and try getting a no object waiver and then adjust status, and if cannot get the waiver, simply file an I-130 for a spouse visa and have her return to China and wait out the 2 years, the resulting visa and green card would be an IR-1 and a 10 year green card.

 

 

 

Hi!

 

First thank you for all replied to this thread so far. I appreciate for your information.

 

@dnoblett

 

Yes, she is still in the States. She is a elementary school teacher. She teaches Chinese in the school.

 

She got financial support when getting the J1 Visa before.

Also, it seems that "Teacher" is also listed in the J1 Skill list for China: https://travel.state.gov/content/visas/en/study-exchange/exchange/exchange-visitor-skills-list.html

 

So I think that she could get the NOS from the Chinese Embassy is very unlikely.

 

We kind of believe that she would need to go back to China for 2 years in order to serve the HRR.

 

But she told me the other day that she would like to go to Hong Kong during those 2 years and studying for a Master degree there while working part time in school maybe.

 

Hong Kong is part of China, just like other cities in China. Hong Kong is not a country but a special administrative region of China.

 

So I wonder whether she could satisfy the HRR while staying in Hong Kong during those 2 years.

 

I hope someone has experience or idea about this question.

 

Thank you again!

[dnoblett]

Hong Kong is a special region, it was turned over to China by the British, however it is treated as separate from China, Taiwan is also a special case, China considers Taiwan to be a rogue province but part of China, however don't tell that to the Taiwanese who consider the Island to be a country, the U.S. has missions in Taiwan and in Hong Kong, not embassays.

 

So I suspect China would only consider residency in the mainland to count toward the HRR

[LovingYou]

Hi dnoblett,

 

Thank you for the reply.

 

There is a Consulate Office in Hong Kong.

https://hongkong.usconsulate.gov/

 

It is just like the ones in China.

[Randy W]

The problem is that when you leave China to go to Hong Kong, you will get an Exit stamp in your passport by the Chinese border officials. If that is all they go by (and I suspect that it is), she will NOT satisfy the Home Residence Requirement by staying in Hong Kong.

[dnoblett]

Hi dnoblett,

 

Thank you for the reply.

 

There is a Consulate Office in Hong Kong.

https://hongkong.usconsulate.gov/

 

It is just like the ones in China.

 

Notice; HK is not listed on the Beijing Embassy site?

http://beijing.usembassy-china.org.cn/locations.html

 

 

 

LOCATIONS

 

• Chengdu
• Guangzhou
• Shanghai
• Shenyang
• Wuhan

 

This is because US DOS treats HK is a separate entity from Mainland China.

 

Again for a Chinese Citizen to visit or reside in HK they must exit mainland China, this probably will negate the home residency time.

[LovingYou]

Hello all,

 

I just wanted to share what I gathered.

 

I finally received a reply from the Department of State.

 

Unfortunately, staying in Hong Kong won't be counted as the HRR for the Chinese National who has PRC passport.

 

For the purpose of J-1, the Department of State treats Hong Kong and China as 2 different entities.

 

Quite disappointed for us.

 

Hope this information would help other people who needs it.