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Postdoctoral Associate

Published Oct 26,2017 By Chandani Warnasooriya

Hi

I’m a postdoctoral associate for about 2 years and my contract is finishing in 6 months. I have J1 visa, which I applied from UK (My PhD is from UK), although I’m a Sri Lankan citizen. My DS2019 form say that I’m not subjected to 2 years requirement (also nothing mention about the two year requirement in my J1 visa page).

  1. According to my DS form my field code is 26.0210. According to  the US.STATE.GOV site, for Sri Lankans, this sub-category is not subjected to two year requirement. But as my current work is funded by NIH, do I still need the waiver?
  2. I would like to file EB2-NIW petition, as my current job contract ending in 6 months. Do you think I have enough time to apply for I-140? Do I need to get the waiver first?
  3. If I didn’t  apply for the waiver by the time i filed my I-140,  can I transfer my J1 to another institution (My visa is ending in May 2018, but DS form is valid until 2020)?
  4. If i can’t transfer my J1, then can I apply for work authorization, so I can find another job (while my I-140 is processing)?
  5. Again do I need to get the waiver before applying for work authorization or can I do both together (If I didn’t apply for the waiver by the time I file my I-140)?

Could you please advise me on this.

Thank you very much,

Sincerely,

Chandani

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Tigran Kalaydzhyan
Tigran Kalaydzhyan
6 years ago

Hi Chandani,

Please let me know if you were born in Sri Lanka as well, because your options depend on this. I will assume in my reply that you were. The answers numerated in the same way as the questions:

1. If DS2019 says you’re not subject and your profession is not in the list, then, most probably, you’re not subject. However, since there is no information in the passport stamp, you may want to request the so-called J1 Advisory Opinion (see link below)
https://travel.state.gov/content/visas/en/general/advisory-opinions.html

2. Currently, I would not bet on I-140 being reviewed in 6 month. You also do not need the waiver to file I-140.

3. You may not be able to obtain the new DS-form from the other institution after filing I-140, because this will initiate the conflict of intent (immigration vs nonimmigration). Please consider an option of transferring to a new employer prior to filing I-140.

4. You can do so if you also file I-485 together with I-140. In this case you can stay and work in the U.S. while your case is pending, even after J1 expires.

5. The above case assumes that you do not have the home residency requirement. So, the most logical course of action is to request the advisory opinion and begin preparing the I-140 case. If you feel it’s strong enough, you can file it together with I-485. If you feel it is not strong enough, you may consider transferring to a new employer first and then file I-140.

Chandani M Warnasooriya
Chandani M Warnasooriya
6 years ago

Thank you very much for answering my questions.
Yes, I was born in Sri Lanka.

Tigran Kalaydzhyan
Tigran Kalaydzhyan
6 years ago

You are welcome. Yes, being born in Sri Lanka makes things easier from the law point of view comparing to, say, being born in India.

Nikki Virk
Nikki Virk
6 years ago

Hello,
I am an indian and I just completed my masters in computer science and I am planning to go for PhD. I only want to do that if I am eligible for greencard after that. Since rules are changing so rapidly please recommend me if I should go for it.
Thanks

Tigran Kalaydzhyan
Tigran Kalaydzhyan
6 years ago
Reply to  Nikki Virk

Hi Nikki,

Completing PhD studies does not automatically make you eligible for the green card. If you were born in India and you have in mind self-petitioning categories, then, in the current situation, the only option is EB1A (please have a look at the criteria by the link below). It can change after several years, of course (in the positive or negative direction).

http://www.greencardforphd.com/eb1a/extraordinary-ability-eb1a-and-uscis-criteria

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