J-1 waiver and other questions
My wife is a phd and we’re considering applying for a Green Card. We have already purchased the packet for the DIY-EB1A, and we have our packet almost complete by now. We’ve got the recommendation letters and almost everything. The thing is, we were always calm about the 2 year rule issue, since our passports state that “BEARER IS NOT SUBJECT TO 212(e)”. However, gathering all documents for our application, we realized that our DS-2019 says the opposite. Obviously, we panicked.
I’ve read that we can ask for the U.S. Department of State for a clarification, an “Advisory Opinion”. But the thing is, we don’t have much time. As J visa holders, our visas expires on the date indicated in our DS-2019, which is 09/30. We’ve read that we would have a “grace period” of another 30 days, so our plan was to apply for the EB1A right now, with the premium processing, and if we don’t get a positive answer, we would apply in October 1st for the NIW (right now, I-485 dates are not current for the NIW, and we’ve read that they always “restart” as current in October 1st). Our idea was that during this grace period we would be able to file our applications (if needed) and then we would be on our AoS period.
However, right now, we’re not so sure, since we don’t know exactly whether we are subject to the 212(e) or not. Asking for the Advisory Opinion would take for 4 to 6 weeks for an answer, so if the answer is positive, we would already be in mid-October. If negative, it would be too late to ask for the waiver. Actually, it is already too late to request for a waiver.
So, my questions are as follows:
- What exactly is our situation? Are we subject to the 212(e) like the DS-2019 states or are we not, like the visas in our passports say?
- Can we apply for the EB1A right now? We’re not sure if we need to go back to our country for 2 years, but we think that the information on the visas stamped in our passports should be the right ones, since they were emitted last. So, if we apply for the EB1A now, we risk having our petition denied?
- If so, do we need to have the waiver BEFORE filing the I-140 or just before filing the I-485? I mean, could we apply for the NIW, for instance, and if we receive a positive response, can we wait to apply for the AoS until we have the waiver?
- If things go bad and we are subject to the 212(e), our petition for the EB1A would be denied? Or would they just “pause” it and request for us to solve this situation, giving us some time to go after a waiver?
- Does anyone know how long does it take to get a waiver?
- If everything goes wrong and we have to go back to our country, is it possible to apply for both EB1A and NIW from there? I understand that we should do so by “consular processing”, but is this the same thing as applying here in the US, except that instead of sending documents to a lockbox or facility we should apply directly in the US Consulate/Embassy? Can we still use this packet? I haven’t seen many people (if any) in this site that have applied from outside the US.
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