Blog for Postdocs / Phds, National Interest Waiver, Extraordinary Ability

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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.

13 Responses to J-1 waiver and other questions

  • Tigran Kalaydzhyan says:

    Dear Marcelo,

    First of all, thank you for using our packets. I would not be certain whether you are subject to the 212(e) or not. I would not recommend to file I-485 before obtaining the Advisory Opinion, since by signing the DS-2019 you acknowledged that you have read and agreed with all information in the form, including the 212(e) section. You can still file I-140 without a waiver and do the waiver procedure later. Regarding the waiting time for the waiver, it can vary from case to case – can be few months, as well as few weeks. The official processing time is 6 months or less (see the first link below). Yes, you can still apply for the immigrant visa (green card) abroad if your I-140 is approved. The procedure has some differences, such as, e.g., you will need to provide a police report and come to interview, but the procedure is well documented (see second link below for official information).

    • Marcelo says:

      Thanks, Tigran.

      I may have not expressed myself clearly yesterday, but thanks for your reply.

      One of the things I wanted to know was if the absence of a waiver would deny our I-140 or if it would just deny the I-485 later. Because we are considering filing the I-140s (both EB-1A and EB-2NIW) while we’re still in the US, and just filing the I-485 later, after we get a positive response from either (then we’ll probably be back in our country). Hopefuly until then we’ll also have our waivers as well. Would that be possible?

      About our expiring J visas, if we file concurrently the I-140 and the I-485 for the NIW in October 1st, for instance, wouldn’t that put us on the “adjustment of status” situation, allowing us to stay in the US until the issue is resolved? That was our understanting until now. Our plan was to have them ready to file precisely on October 1st (when the dates on the bulletin would – theoretically – “restart”, and the dates would be “current” again) so that we would enter the adjustment of status period and wouldn’t be obligated to leave the US. Does that makes sense?

      Also, just let me figure some scenarios, assuming that we NEED the waiver for 212(e):

      – If we file right now just the I-140 (EB-1A), as in, this week, would our petition be denied because we don’t have the waiver?
      – If it wouldn’t be denied and we receive a positive response for our petition, should we wait until having our waivers to file the I-485?
      – The absence of the waiver would lead to a downright denial or would it lead to a RFE?
      – If we wait to file concurrently the I-140 and the I-485 for the NIW GC at the beginning of October, would that put us in the “adjustment of status” situation, allowing us to stay in the US even if our visas expire in the meantime?
      – In that case, if the absence of the waiver generated a RFE, that would give us some more time to get the waiver while staying in the US?
      – If we file the I-140 (either one) and decide to go back to our home country before filing the I-485, should we declare this in the I-140 (Part 4, processing information), even if we file these forms in the US, right?

      I might have some more questions, I’m sorry for that, it is just that we were really hoping to get a GC and we just faced this whole situation.

      • Tigran Kalaydzhyan says:

        Hi Marcelo,

        The absence of the waiver should not affect the I-140 decision, but will lead to I-485 denial later if you are, indeed, subject to 212(e). Absence of the waiver may (and does) lead to the I-485 denial without RFE. If you answered “Yes” for the question 11 in I-485, then USCIS has a right to deny you immediately, since you are not eligible for the AoS. So, the safe bet is to file I-140 without I-485.

        It is possible to file I-140 now and apply for the permanent residence while being abroad. Please keep in mind that in this case it will be, formally speaking, not the adjustment of status (AoS), because the AoS you can make only while residing in the U.S. (being in status). You will not file I-485 while being abroad, but follow a different procedure (see link in my previous comment). Yes, you are right, you can stay in the U.S. while your I-485 is pending (means, after you filed I-485) even if your J1 expires (sorry for the confusion in the previous message, I corrected it).

        If you plan to go back to your home country, then you can choose “Consular processing”. Alternatively, if you are not sure, you can select “Adjustment of Status” and later file the Form I-824, Application for Action on an Approved Application or Petition, if you decide to leave the U.S.,

        Please feel free to ask any further questions.

        • Marcelo says:

          Thanks again Tigran

          We contacted a couple of lawyers to better understand our situation, and both said that they believe that since the visas stamped in our passports were made according to our DS-2019, that we should not be subject to the 212(e). Honestly, it seemed to us that they are trying to have us contract them to “fight for it” in a court. This might be a solution, but I’m sure it would be an expensive one.

          About the I-140, we have it almost fully complete and we decided to file it right now (for the EB-1A at least) and wait for the answer (we will require the premium processing). Meanwhile, we are contacting our consulate to provide a non-objection letter for our requirement to stay in the US (apparently, since my wife’s J-1 was sponsored by our government, they can give us this letter if we refund the whole scholarship she received, and we can pay in several installments). So, we can file the I-140 without the DS-2019, right? That’s just a minor confusion we’re having, we don’t know very well which documents should accompany the I-140 and which ones should accompany the I-485, we do know that we would send all documents when filing concurrently.

          In this case, we’re not quite sure yet if we’ll file the I-485 while still in the US or if we will go through the consular processing route, since we don’t know yet if we’ll have to leave the US or not. So I understood by your answer that we could file the I-140 and state on its part 4 that we would be filing the I-485 from here in the US, but if we need to go back to our country, we could use the form I-824 to “correct” this. Is that it?

          I tried to understand how this whole consular processing works but it seems very bureaucratic and lenghty. Also, it seems to be directed to the sponsored kind of GC, since they ask for sponsor statement, to provide financial information and etc. We’re not quite sure on how we could show them this. Our country is currently facing a terrible crisis, and that’s one of the reasons why we want to stay in the US. Here in the US, my wife has ran accross several job opportunities, that unfortunately didn’t worked out because the companies wouldn’t sponsor her (but were willing to hire her if she had a GC). On the other hand, in our country her field of work is terrible, with very few job opportunities appearing, and much more jobs being lost (unemployment is currently around 13%). So, in reality, if we have to go back to our country, that means that both of us would be unemployed from day one there, while here in the US I’m being well-paid in two part-time positions (I have an EAD) and she’s been scouted by big companies in her field. Satying here in the US represents good opportunities, a future and financial stability. Going back to our country represents unemployment and a hopeless future.

          • Tigran Kalaydzhyan says:

            Dear Marcelo,

            Please have a look at the example petition in our packet for the list of necessary documents. You can include DS-2019 as an immigration history document, it should not be a problem. I think you can file I-140 immediately and spend the waiting time to develop a strategy for the next steps.

            > So I understood by your answer that we could file the I-140 and state on its part 4
            > that we would be filing the I-485 from here in the US, but if we need to go back to
            > our country, we could use the form I-824 to “correct” this. Is that it?

            Yes, right.

            > I tried to understand how this whole consular processing works but it seems very bureaucratic and lengthy.

            It is, actually, not that complicated and is similar to the usual visa procedure. Please see the first link below, maybe it will make it easier. Since you are filing EB1A you do not need a sponsor, you just have to show at the interview that you will not become public charge to the United States (see second link below for the definition). If you have convincing work plan in I-140, then this should not be a problem.


  • Marcelo says:

    Thank you so much for your help, Tigran!

    One last question (hopefuly). If we get our I-140 approved but our I-485 denied, can we file another I-485 or go through the consular processing (depending on the case) at a later time, based on the same approved I-140 or would we have to file another I-140? I believe that after a I-140 is approved, we can file as many I-485s or similar forms as needed, correct?

    • Tigran Kalaydzhyan says:

      Yes, this is correct. You don’t have to file another I-140. It is ok to refile I-485, if you provide an explanation how the case has changed taking into account the previous denial. Please be careful with providing an information you are not sure about, because it can be interpreted as lying, which may lead to complication with filing the next I-485.

      • Marcelo says:

        I’ve also been giving a look in the I-824. In the case we don’t get our I-485 approved or if we have to leave the country due to enforcement of the 212(e) rule, where could we get some help on filling the I-824 form? I haven’t been able to find any good information anywhere, except from the USCIS site itself, but instructions aren’t very clear, since they mostly seem to refer to other forms, and there is not any clear information on how to ask for a change in the Part 4 of the I-140.

        • Tigran Kalaydzhyan says:

          I believe there is not much information on the I-824, because it is a pretty straightforward form. If you decide to apply abroad, then your documents should be transferred to the NVC, and this should be indicated in the form. The tricky part is the choice of the consulate and the waiting time. It seems you can pick the consulate and accelerate the process by sending the I-140 approval notice along with other necessary documents to your consulate once you receive the receipt notice of I-824 (not all consulates seem to accept this practice though), see the link below

          It seems that the I-824 processing time is pretty long. According to the recent USCIS data, it can take 3-7 months depending on the service center, see link below. So you may have to take this into account as well – if your consulate does not accept the “Attorney Certified I-140”, it may add half a year or more to get your documents transferred to NVC to start the consular processing.

  • Marcelo says:


    We have some (possible) new development in our case.

    As stated, we filed the I-140 petition on Monday. Yesterday (Wednesday), my wife’s boss here in the US (who is in charge of the lab she’s currently working) called her in his office and said he is willing to provide her another 3 to 6 months of scholarship.

    This may be good news. However, we understand that when we applied for the GC, we basically gave up on our chances of renewing our J visas, since they require proof that we don’t have any “intention to stay” in the US. But is it possible to just get another DS-2019, even with a pending I-140 application? We don’t actually need the visa itself (as far as I know, the visa is a document required to enter the United States, and the “status” is another thing), but if her boss can give her an scholarship for another 3 to 6 months and produce a new DS-2019, I believe we could be “in status” for another 3 to 6 months, correct? That would definitely give us enough time to solve all our pending problems (which, basically, revolves around time, or the lack of it).

    So my question is, can we get a new DS-2019 even with a filed I-140 or would they deny us?

    Thanks once again.

    • Tigran Kalaydzhyan says:

      Hi Marcelo,

      This is a grey area, please consult with the immigration officer in your wife’s lab. Formally speaking, they should not issue you the DS2019, since it is a certificate of eligibility for J1, and you are not eligible, because you demonstrated the immigration intent. However, the immigration office in your wife’s lab may have a better knowledge of common practices.

  • Marcelo says:

    Yes, I think we should definitely consult with him. I understand that our extension may (and probably will) be denied in this situation. However, if our I-140 is denied and/or we drop our petition, would it work? From what I understood reading on the subject, the USCIS only checks current pending I-140 applications, but not if one was not granted. This makes sense?

    • Tigran Kalaydzhyan says:

      Formally speaking, by filing the I-140 you already declared the immigration intent regardless of the outcome. The other question is how rigorously various departments check your visa case and whether or not the withdrawal of I-140 can be used as an argument against the immigrant intent. Please consult with the immigration officer of your or your wife’s employer regarding the common practices at the moment.

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