Can I file AOS with pending J-1 Waiver at USCIS?

[icefresh 1]

Hi!

I have applied for a J-1 Waiver based on No Objection with the Department of State in May 2012. The Department of State issued a favorable recommendation in July 2012. USCIS send me a Notice of Action in July as well. Since then it's pending at the Vermont Service Center.

Can I file Adjustment of Status and attach a copy of the favorable recommendation and the USCIS receipt?

How do I answer question 11: "Have you ever been a J nonimmigrant exchange visitor who was subject to the two-year foreign residence requirement and have not complied with that requirement or obtained a waiver?" Yes, No or leave it blank and say "see attached sheet"?

Thank you!

[CC90 90]

I suppose you could--and attach an explanation. The only issue is that if you don't hear from USCIS by the time your I-485 is up for adjudication (i.e. the interview), you run the risk of it being denied and having to go through the process, time, and expense to file again. It would be safest to wait.

[icefresh 1]

I suppose you could--and attach an explanation. The only issue is that if you don't hear from USCIS by the time your I-485 is up for adjudication (i.e. the interview), you run the risk of it being denied and having to go through the process, time, and expense to file again. It would be safest to wait.

So in addition to my explanation would I check off "Yes" or "No" or nothing at all for question 11?

[CC90 90]

So in addition to my explanation would I check off "Yes" or "No" or nothing at all for question 11?

Well the answer would be "Yes" since you don't have a waiver.

You also run the chance of it being denied outright or getting an RFE in which you only have 87 days to respond with the completed waiver.

You'd be best to wait.

[icefresh 1]

Well the answer would be "Yes" since you don't have a waiver.

You also run the chance of it being denied outright or getting an RFE in which you only have 87 days to respond with the completed waiver.

You'd be best to wait.

Unfortunately my visa is expiring soon. If it get rejected outright, I guess I don't have to pay it and can just re-apply once I have the waiver (if it still comes in time)?

[CC90 90]

Unfortunately my visa is expiring soon. If it get rejected outright, I guess I don't have to pay it and can just re-apply once I have the waiver (if it still comes in time)?

It won't get rejected; it will get denied. You will be out the filing fees in this case.

On which basis are you adjusting? Even if you're not adjusting based on an immediate relative, you would still probably be eligible for 245(k). Otherwise, if you are adjusting based on an immediate relative, your visa expiration is irrelevant to the process.

[Harpa Timsah 13,258]

No, you cannot file until you have you waiver approved. You must be eligible to adjust status when you sign the paperwork, and until you have the paperwork in hand, you are not eligible. Someone in the other forum just had this happen to them. They obtained the waiver in the middle of the process, and though they had it at the end of the process, the were denied.

[CC90 90]

No, you cannot file until you have you waiver approved. You must be eligible to adjust status when you sign the paperwork, and until you have the paperwork in hand, you are not eligible. Someone in the other forum just had this happen to them. They obtained the waiver in the middle of the process, and though they had it at the end of the process, the were denied.

I suppose this makes sense, particularly if we're contrasting it to filing before one's priority date become current.

[icefresh 1]

It won't get rejected; it will get denied. You will be out the filing fees in this case.

On which basis are you adjusting? Even if you're not adjusting based on an immediate relative, you would still probably be eligible for 245(k). Otherwise, if you are adjusting based on an immediate relative, your visa expiration is irrelevant to the process.

I'm filing family based (marriage). So I was at an USCIS Field Office (not with the attendant at the entrace, but with a person at a window - I guess an Immigration Officer?) and they told me I can file once the waiver is pending with USCIS. Hopefully they're right.

Edited August 9, 2012 by icefresh

[CC90 90]

I'm filing family based (marriage). So I was at an USCIS Field Office (not with the attendant at the entrace, but with a person at a window - I guess an Immigration Officer?) and they told me I can file once the waiver is pending with USCIS. Hopefully they're right.

You lose absolutely nothing by waiting.

[icefresh 1]

You lose absolutely nothing by waiting.

My problem is that I need to leave the country in October/November (for 2-3 months) and need an AP. The later I submit, the later I get the AP. And if I overstay my current J-1 I'm afraid that I will be inadmissible once I return to the US on AP. So I really don't know what to do.

Edited August 9, 2012 by icefresh

[Harpa Timsah 13,258]

Here is the person that was denied: http://www.visajourney.com/forums/topic/381360-aos-denied-because-of-2-year-waiver/

As far as I know, the waiver must be accepted before you sign or send anything. It cannot be finished in the middle of the process. I believe this is spelled out in the INA or an adjudicator's field manual, but I do not have time to check that right now. It is much like a K-1 needs to be free to marry at the time they submit the application, not simply before the visa is approved.

[Harpa Timsah 13,258]

Okay, I found it pretty fast, so here you go: http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=8cfr

8CFR 245.1

"© Ineligible aliens . The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act: (Added 10/1/94; 59 FR 51091 )

...

(2) Except for an alien who is applying for residence under the provisions of section 133 of the Immigration Act of 1990, any alien who has or had the status of an exchange visitor under section 101(a)(15)(J) of the Act and who is subject to the foreign residence requirement of section 212(e) of the Act, unless the alien has complied with the foreign residence requirement or has been granted a waiver of that requirement, under that section. An alien who has been granted a waiver under section 212(e)(iii) of the Act based on a request by a State Department of Health (or its equivalent) under Pub. L. 103-416 shall be ineligible to apply for adjustment of status under section 245 of the Act if the terms and conditions specified in section 214(k) of the Act and Sec. 212.7©(9) of this chapter have not been met; (Amended 5/18/95; 60 FR 26676 ) " [emphasis mine]

You are ineligible to APPLY for AOS until the waiver has been granted.

Edited August 9, 2012 by Harpa Timsah

[Little_My 464]

You have two options.

1. Wait until you have the waiver granted, file for AOS, and hope that you'll get the AP in time for your planned trip. If you don't, then you cannot leave. If you do leave without the AP, your AOS will be considered abandoned, you'll be stuck outside the US, lose the fees you paid for AOS, and have to file for CR-1 abroad.

2. Continue with the J-1 waiver, but do not file for AOS. File for CR-1. You can remain in the US until your J1 expires, but then you will have to leave and wait out the CR-1 process abroad. My understanding is that CR-1 visas take around 9-11 months. You didn't say when your visa expires exactly, but let's say it's end of August. You would have been gone for 3 months for your trip anyway, so if you are able to file early August, your CR-1 could be approved around May 2013. That would mean being abroad for 3-4 monts more than you originally planned for - not that bad in my opinion.

[icefresh 1]

I think I found the answer in the adjudicator's field manual:

45.5 Waiver Based on a “No Objection” Letter.

(a) Filing .

The foreign residence requirement may be waived based on a formal written statement from the exchange visitor’s home country that it consents to a waiver of the two-year foreign residence requirement. This official letter is commonly known as a “no objection” letter. A “no objection” letter must be sent directly from the exchange visitor’s home country to the Department of State’s Waiver Review Division through official diplomatic channels. A “no objection” letter submitted directly by the exchange visitor should be rejected with instructions on the proper channels for submission. A “no objection” letter is generally insufficient to warrant a favorable recommendation from the Secretary of State when U.S. government funding was involved in the exchange program. Section 212(e)(iii) of the Act further prohibits waivers based on “no objection” letters in most cases of J-1 foreign medical graduates (FMG) whose exchange programs are for the purpose of pursuing graduate medical education or training.

Note 1:

Section 212(e) waiver cases based upon these grounds are considered to be filed with USCIS only on receipt of a Waiver Review Division recommendation. Preliminary requests from interested United States Government agencies or the government of the exchange visitor's country should be rejected and the applicant referred to the Waiver Review Division.

Note 2:

A “no objection” case is the only situation where the alien is allowed to file an adjustment application concurrently with waiver request.

Note 2 applies to me.