Need some advice

[hladtech 0]

Hi all,

We are in need of some advice.

My fiancée and I met shortly before Christmas 2004 while she was in the United States on a J1 visa with a 2-year restriction. During the year she was here we fell head over heals in love. Neither one of us knew anything about the depth of what a 2 year restriction really meant. Shortly before she had to leave in November 2005, we started looking into seeing if she could stay here in the US. It was then that we started to realize it wasn't going to be a walk in the park.

She went back to Poland on November 11, 2005 and we started looking into what it would take to get the 2 year restriction removed or amended. The first year we were flopping between putting in for the no objection letter (which we still really didn't understand in depth), and just waiting the 2 years to see if what we felt was true.

Prior to the end of the first year she got a job opportunity in Scotland and took it. She spent 9 months in Scotland and then returned home to Poland. During these 9 months we started hearing from people that the time she was in Scotland would be added to the time she had to spend in Poland before the 2 year Home Residency Restriction would be satisfied.

Now instead of the 2 year HRR ending mid November it will be August 2008 .

This is where we need some advice, should we:

1. Start the K1 visa process now (we have all of the information we need and can have the 1st packet sent off in a week), and at the same time start the No Objection Letter process?

2. Start the No Objection Letter process and wait for the inevitable approval, then send in the 1st K1 packet?

3. Wait for August 2008 (while loosing our minds from being apart even longer) then once the 2-year HRR has been satisfied send the first packet?

4. Start the K1 process around March 2008 (about 6 months out from the end of the 2 year HRR) and hope our timing is right?

P L E A S E feel free to ask for any info that may help with your advice.

Thank you all.

[bszoom42 0]

Ok, let me see if I understand what is going on here.

Your fiancee entered the US and subsequently left the US on November 11, 2005 on a J-1 Visa. You fiancee did not overstay the visa.

This is an Exchange Alien visa if I remember correctly, and subject to section 101(a)(15)(J) of the INA.

(J) an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency, for the purpose of teaching, instructing or lecturing, studying, obser ving, conducting research, consulting, demonstrating special skills, or receiving training and who, if he is coming to the United States to participate in a program under which he will receive graduate medical education or training, also meets the requirements of section 212(j), and the alien spouse and minor children of any such alien if accompanying him or following to join him;

Now your fiancee is ineligible to receive "an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)" under INA Act 212(e)

(e) No person admitted under section 101(a)(15)(J) or acquiring such status after admission (i) whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States or by the government of the country of his nationality or his last residence, (ii) who at the time of admission or acquisition of status under section 101(a)(15)(J) was a national or resident of a country which the Director of the United States Information Agency pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, or (iii) who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15) until 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: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request of a State Department of Public Health, or its equivalent), or of the Com missioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion, the Attorney General may waive the requirement of such two-year foreig n residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an interested United States government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the requirements of section 214(l) 22aaa/ : And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Director a statement in writing that it has no objection to such waiver in the case of such alien.

But since a K-1 Visa is a non-immigrant visa under section 101(a)(15)(K), wouldn't that mean the 2 year residency requirement does not prevent your fiancee from gaining a K-1 Visa?

My guess (and I have no expertise, so this is just a guess) is that this won't impact your K-1 visa process, and you can file promptly, without requiring any waiver.

Perhaps you can get better opinions from other members, or perhaps from consulting a qualified immigration attorney. Best of luck!

Edited August 13, 2007 by bszoom42

[bszoom42 0]

I did some further looking up of relevant information:

http://travel.state.gov/visa/temp/info/info_1288.html

According to the U.S. Department of State (and their opinion is better than mine)

If you are subject to the two-year foreign residence requirement, you may not change your status to that of H, L, or K, or to immigrant or legal permanent status until you have fulfilled the two-year foreign residence requirement by going back to your home country or receiving a waiver of this requirement.

Now, I couldn't find where in the INA or USC that the K visa is also subject to that restriction, but that probably means I didn't look hard enough or am not looking in the right spot.

Also, they have information about if you are not sure if 212(e) applies to you.

If you are not sure whether the INA 212(e) two-year foreign residence applies to you, you may request in writing an advisory opinion on applicability of INA 212(e) to your situation. The advisory opinion request should include all copies of DS-2019/IAP-66 issued to you, along with a self-addressed envelope, and should be sent to:

INA 212(e) Advisory Opinion Request

The Waiver Review Division, CA/VO/L/W

SA-1, L-603

U.S. State Department

2401 E Street, NW

Washington, D.C. 20522-0106

I suggest you review this website and proceed accordingly.

Best of luck!

[bszoom42 0]

Ok, I found out where I missed the reference:

http://travel.state.gov/visa/laws/telegram...grams_1437.html

N8 Former Exchange Visitor and INA 212(e)

Before a K visa may be issued to an applicant who is a former exchange visitor and subject to the provisions of INA 212(e) the applicant must establish that the requirements of INA 212(e) have been fulfilled or that a waiver has been obtained. [see 22 CFR 40.202(b) and Sec. 40.202 Notes.]

So definitely, it applies to you. You need to find out if you are eligible for a DS-3035 waiver (http://travel.state.gov/visa/temp/info/info_1288.html).

If you are, you will need the waiver before your fiancee can get the K-1 Visa, or you would need to wait out the residency period.

As to whether you can file your petition before you have the waiver, that I do not know, and I won't guess either

Best of luck!

[bszoom42 0]

And as a side note, I found out that the INA listed on USCIS website is not listed as amended, you need to refer to those amendments seperately.

Here is the pertinent amended code from the electronic Code of Federal Regulations

http://ecfr.gpoaccess.gov/cgi/t/text/text-...1.2&idno=22

§ 40.202 Certain former exchange visitors.

An alien who was admitted into the United States as an exchange visitor, or who acquired such status after admission, and who is within the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not eligible to apply for or receive an immigrant visa or a nonimmigrant visa under INA 101(a)(15) (H), (K), or , notwithstanding the approval of a petition on the alien's behalf, unless:

(a) It has been established that the alien has resided and has been physically present in the country of the alien's nationality or last residence for an aggregate of at least 2 years following the termination of the alien's exchange visitor status as required by INA 212(e), or

(B) The foreign residence requirement of INA 212(e) has been waived by the Secretary of Homeland Security in the alien's behalf.

Now its clear to see that the K visa is subject to INA 212(e)!

Edited August 13, 2007 by bszoom42

[pushbrk 12,824]

And as a side note, I found out that the INA listed on USCIS website is not listed as amended, you need to refer to those amendments seperately.

Here is the pertinent amended code from the electronic Code of Federal Regulations

http://ecfr.gpoaccess.gov/cgi/t/text/text-...1.2&idno=22

§ 40.202 Certain former exchange visitors.

An alien who was admitted into the United States as an exchange visitor, or who acquired such status after admission, and who is within the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not eligible to apply for or receive an immigrant visa or a nonimmigrant visa under INA 101(a)(15) (H), (K), or , notwithstanding the approval of a petition on the alien's behalf, unless:

(a) It has been established that the alien has resided and has been physically present in the country of the alien's nationality or last residence for an aggregate of at least 2 years following the termination of the alien's exchange visitor status as required by INA 212(e), or

(B) The foreign residence requirement of INA 212(e) has been waived by the Secretary of Homeland Security in the alien's behalf.

Now its clear to see that the K visa is subject to INA 212(e)!

And it is clear that applying for a waiver is possible. It is not clear a waiver would be granted. We do have a waivers forum that might yield more information on that.

[soco7tech 0]

And as a side note, I found out that the INA listed on USCIS website is not listed as amended, you need to refer to those amendments seperately.

Here is the pertinent amended code from the electronic Code of Federal Regulations

http://ecfr.gpoaccess.gov/cgi/t/text/text-...1.2&idno=22

§ 40.202 Certain former exchange visitors.

An alien who was admitted into the United States as an exchange visitor, or who acquired such status after admission, and who is within the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not eligible to apply for or receive an immigrant visa or a nonimmigrant visa under INA 101(a)(15) (H), (K), or , notwithstanding the approval of a petition on the alien's behalf, unless:

(a) It has been established that the alien has resided and has been physically present in the country of the alien's nationality or last residence for an aggregate of at least 2 years following the termination of the alien's exchange visitor status as required by INA 212(e), or

(B) The foreign residence requirement of INA 212(e) has been waived by the Secretary of Homeland Security in the alien's behalf.

Now its clear to see that the K visa is subject to INA 212(e)!

And it is clear that applying for a waiver is possible. It is not clear a waiver would be granted. We do have a waivers forum that might yield more information on that.

Thank you all for the responses.

It looks as though our information is correct about the 2 year HRR.

My fiancee posted http://www.visajourney.com/forums/index.php?showtopic=82920 but hasnt had any responses as of yet. We want to ensure that we have all our bases covered and questions answered so we only have to do this one time. It's like playing european football in a mine field, one wrong step anywhere and it blows up in you face.