Lawyer claims J1 waiver voided, urges for reapplication. Need second expert opinion

[Peixin 2]

Hello,

 

i got I-140 approved (EB2-NIW) and I am applying for AoS. my lawyer alerted me that my last DS-2019 still had 212(e) ticked even though I received J1 waiver at an earlier date. He claimed that this voided the waiver and urged me to reapply for the waiver to cover all my DS-2019s. I do not trust him because I used the same J1 waiver and all my DS-2019s to apply for H1B and I successfully got it. Can anyone’s provide a second expert opinion on this matter?

[fs2439 46]

On 11/12/2018 at 7:09 PM, Peixin said:

Hello,

 

i got I-140 approved (EB2-NIW) and I am applying for AoS. my lawyer alerted me that my last DS-2019 still had 212(e) ticked even though I received J1 waiver at an earlier date. He claimed that this voided the waiver and urged me to reapply for the waiver to cover all my DS-2019s. I do not trust him because I used the same J1 waiver and all my DS-2019s to apply for H1B and I successfully got it. Can anyone’s provide a second expert opinion on this matter?

Hello, were you  able to solve this?

[Peixin 2]

Hello,

 

Yes, I reapplied for the waiver. I ended up writing to DoS for advisory opinion and they confirmed that I was resubjected to 212(e). It took me 5 months to get the waiver again.

[fs2439 46]

On 4/30/2019 at 11:24 PM, Peixin said:

Hello,

 

Yes, I reapplied for the waiver. I ended up writing to DoS for advisory opinion and they confirmed that I was resubjected to 212(e). It took me 5 months to get the waiver again.

Wow. Thank you

[fs2439 46]

I am planning to apply for niw. I have an o1a since november. Trumpian immigration times are so intimidating though. Wondering if i should just try to get my company to do labor certification. Any personal opinion?

[okland 31]

Just a clarification to future readers: 1- It is possible to get H-1Bs while still subject to 2YRR. H-1B is still a non-immigrant visa, although it is also a dual intent visa. 2- Each DS-2019 requires a separate 2YRR waiver. 

[Peixin 2]

? Unless the rules have changed, you cannot get H-1B if you are subjected to 212(e). You can begin H-1B application without the waiver NOA in hand, but eventually, when you are approved, to get the visa stamp you absolutely need to waive 212(e).

[Peixin 2]

Proof from the DoS website (https://j1visa.state.gov/participants/current/adjustments-and-extensions/) statement:

 

"Program participants who are subject to the two-year home-country physical presence requirement, as established by Section 212(e) of the Immigration and Nationality Act, must apply for a waiver of that requirement if they seek to remain in the United States beyond the end date of their programs or if they seek to submit an application to the United States Citizenship and Immigration Services for a change in visa status."