J1 2-year rule. Applies or not?

[Aniya.Zee 0]

In 2001 I was issued a J1 visa as a participant of an exchange program for high school students. I no longer have the DS-2019 for that visa but I am fairly certain that on the visa itself it said "two year rule does apply". However, when I was entering the US on the that J1 visa the immigration officer wrote on the back of my I-94 "student, two year rule does not apply". During my exchange year in the US I applied and got into college. After my exchange program finished I went back to Russia <my home country at the time> and applied for a student visa at the embassy in Moscow. During my visa interview the officer initially stated that the two year rule applied to my case and thus the visa cannot be granted without a waver. However, after I showed him the copy of the I-94 with the annotation left by the immigration officer at the border he went to the back room to consult with some colleagues <I assume> and when he came back he said that my visa will be granted. Unfortunately the copy of the I-94 with the annotation was never returned to me. Since that time I have finished my undergraduate and graduate degrees and have been working in the US on an H1B visa for the past 7 years. The 2-year-rule never came up either during the subsequent F1 applications or during the three H1B applications <I always disclosed my previous J1 status in the applications>. To make the matters more complicated, my parents and I have relocated to Germany in 2003 (so after my first year in college and a year after I came back from my J1-based exchange program);at the time of our move I was still a minor. Our move to Germany was under a refugee status and we now hold German permanent residence. My only visit to Russia since July 2003 was a two week trip in 2009. Both my parents live in Germany and I don't have any close relatives in Russia.

So here are my questions:

1. Does or does not the 2-year-rule apply to my case? Since that conversation at the Moscow embassy I have always assumed that it does not since that's what the embassy officer told me and since it never came up during the several H1B applications. However, I have recently had a conversation with a friend who is also an immigration attorney and participated in the same program as I did and she said that she is "99% sure that the two year rule does apply". I am in the middle of a green card process (employment-based) and she seems to think that this could turn into a huge issue once I file the I-485

2. If the 2 year rule does indeed apply, would the time I spent in Germany count towards the HRR? Since my family moved to Germany as refugees back in 2003 and I was a minor, I wouldn't have fulfilled the 2 year residency requirement even if I didn't go to a US college.

3. And last but not least, what should i do now? Let the sleeping dogs lie and hope that no flags are raised during the I-485? Try to get an advisory opinion? A waiver?

Please, please, please any help or advice is very much appreciated.

best,

A

[Sarahnick 19]

I believe the time outside the USA is what counts towards the two year rule. So, you being in Germany or any other country should counts.

I'm pretty sure that's how it works. Read about it otherway on uscis or your "local" U.S. embassy website for more exact information. I remember I even emailed my embassy to ask about it. I have had the J1 too but mine stated "2yr rule does not apply".

[milimelo 4,550]

No, it's home residency requirement - not any country requirement. OP who sponsored your J1? If US government program, it does apply.

I-94 is normally turned in when you leave the US and of course you wouldn't get that back.

[Aniya.Zee 0]

Milimelo, I understand that it's a home residency requirement but in my case Russia hasn't been "home" since 2003 when me and my parents moved to Germany on a refugee status. So I couldn't have stayed in Russia for two years after returning from the exchange year even if I wanted to

As for the I-94 I was talking about a copy I took of it before leaving the US, which I submitted to the embassy official in Moscow when I applied for the F1. Which was never returned to me