Can I apply for my EB2 NIW and get my J1 research 2 year home residency requirement waived?

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Customer: Hi. Can I apply for my EB2 NIW and get my J1 research 2 year home residency requirement waived?
Answered by LawEducator in 7 hours 1 year ago
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Customer
I am J1 research and not clinical.
Customer
I am post doctoral fellow
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LawEducator, Expert

Hello and welcome to Just Answer. I am Law Educator and I am pleased to assist you today with providing you the answers you are seeking for educational purposes only.

I know your question is important and I’m working on typing an answer to your question now so if you do not want a phone call you do not have to worry about taking the site’s offer because I am just as happy to type my answer as to talk.

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LawEducator, Expert

Good morining

You are asking about the 2 year residency rule with the J-1 visa

When you file the NIW you can file the J-1 waiver as well and you can get the 2 year residency period waived.

See: https://immigrationroad.com/green-card/national-interest-waiver-niw.php

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LawEducator, Expert

Please let me know if this information satisfied your needs.

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Thank you very much!

Best wishes,

LawEducator

Customer
Hello
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LawEducator, Expert

Hello.

Customer
I have asked this question because on J1 research you said I can waive the 2 year rule with EB2-NIW and will not have to do IGA waiver. Do I file for the IGA waiver?
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LawEducator, Expert

If you read the link, if your research is important as you said it was and as it sounds, then you would file a NIW EB-2 AND you would file a J-1 waiver, which would seek to waive the 2 year return to your country.

This is the process to try to get around the 2 year rule without the IGA and EB-5

It is an alternative for you to pursue.

Customer
However, a national interest waiver does not replace a J-1 home country residency waiver. If you are in J-1 status and have already received NIW approval, you still must obtain the J1 waiver or fulfill the 2-year residency requirement before you can adjust your status.
Customer
Your article says this
Customer
Are J-1 Scholars Eligible for NIW?
Yes, as long as they are otherwise qualified. However, a national interest waiver does not replace a J-1 home country residency waiver. If you are in J-1 status and have already received NIW approval, you still must obtain the J1 waiver or fulfill the 2-year residency requirement before you can adjust your status.
Customer
Kindly let me know because this mentions that getting NIW will not waive my 2 year home residency requirement
Customer
J1 2 year home residency requirement
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LawEducator, Expert

Yes, I told you above, you have to file a J-1 waiver for the 2 year residency in addition to the NIW, that is exactly what the article says as well.

Again, the J-1 waiver/NIW is an alternative means to your EB-5 IGA route because the IGA is way more difficult than you getting the J-1 Waiver and NIW.

Customer
For the J1 waiver I have to get the IGA.
Customer
you said alternatively if I do eb2 NIW then I will be able to rule out the 2 year home residency requirement
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LawEducator, Expert

You can also ask for the J-1 waiver based on the eb-2 NIW, not just for the IGA.

In fact, you copied and pasted the same answer back to me, see the emphasis I am putting in:

If you are in J-1 status and have already received NIW approval, you still must obtain the J1 waiver or fulfill the 2-year residency requirement before you can adjust your status.

So the above statement is telling you that you can do the NIW and get that approved and then file the J1 waiver to get around the 2 year requirement.

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LawEducator, Expert

Not just the IGA qualifies you.

Customer
Once I get the NIW then through which route I will get the waiver?
Customer
On what basis will I apply for J1 waiver
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LawEducator, Expert

You apply for the J-1 waiver based on the research needing to be continued and no objection from your home country.

If you are not an MD, you cannot rely on that waiver ground.

Customer
No objection is not the route for me as my country has stopped giving me no objection certificate. I am from India.
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LawEducator, Expert

Ahh, okay, then your only other basis is as you said the IGA in that case, unless you qualify under some family hardship or persecution in your country if you return.

Customer
Once I get the NIW I will not have to do the waiver of 2 year rule?
Customer
You said this yesterday
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LawEducator, Expert

I said that you can seek waiver of the J-1 requirement and I also said it was a potential option for you to explore.

Option is not a guarantee.

Customer
Ok
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LawEducator, Expert

Just because you have options, you should try them and see if you can get them to work out for you.

Some may, some may not, but they are worth exploring just in case.

Customer
Why will I do EB2 NIW then
Customer
I will now apply for waiver
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LawEducator, Expert

That is up to you it is one avenue to try, since you asked if you had other options.

Customer
What benefit EB2 NIW give me?
Customer
It not waiving the j1 2 home residency rule for me and I cannot apply for H1b also based on that
Customer
Correct me if I am wrong?
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LawEducator, Expert

It only helps if you can get the J-1 waiver,it was an option for you
Of course, if it will not work because you cannot put the proper proof together to get the J-1 waiver, then you are limited to only your IGA.

Customer
Can I buy time to arrange for IGA? What visa options do I have?
Customer
Till I don’t get the waiver what visa options I have
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LawEducator, Expert

Unfortunately, I have given you the options if they do not fit you then I am afraid you are pretty much out of options.

Customer
If I get the no objection letter then even If I am working for Johns Hopkins on NIH project it would not affect my application right?
Customer
Also if I get NIW then can I shift from j1 to H1 without getting the waiver
Customer
I can look into the waiver later
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LawEducator, Expert

If you get the no objection letter, you would be good to go with the NIW and you can shift to H1 or file your I-140 for permanent status and I-485 to change your status.

Customer
Government funds will not make it impossible for me to get the NORI right
Customer
NORI- no objection to return to India
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LawEducator, Expert

That is right the government can still issue the NORI

Customer
Even US department of state will grant me the waiver if I get the NORI from India even though I am on government funds
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LawEducator, Expert

Yes, if you get the NORI from India that is correct.

Customer
Also, if I don’t have any option can shift from J1 to J2 dependent on my husband because he is a physician and he will apply for waiver through Conrad 30 in 3 years and even as j2 I will get the waiver too and then can apply for adjustment of status.
Customer
My eb5 would not get affected by me going on J2
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LawEducator, Expert

Yes, you could switch to J2 with that interesting twist in information and it will not interfere with your Eb-5

Customer
It should also not affect my job profile. I can continue in the same university and get paid too right? My husband is a physician at university of Maryland and I am at Johns Hopkins.
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LawEducator, Expert

No it should not impact your job profile either.

Customer
Also j2 will not put me in double waiver condition right
Customer
I will just have to apply for waiver once
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LawEducator, Expert

No you only need to file one waiver, no double waiver needed.

Customer
Also when my I526 application is approved next year then if I don’t have the waiver I can wait for the waiver to happen and then file for adjustment of status right?
Customer
Let me know
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LawEducator, Expert

No you should not need the waiver when your I-526 is approved, you wait for waiver to file the adjustment.

Customer
I will do the waiver with my husband and then we both will file for the eb5 adjustment of status. Right?
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LawEducator, Expert

Yes, that is true as well.

Customer
Also J2 can file for waiver at any point independently so I can try for my waiver through IGA and NORI also
Customer
Later and get an independent H1b
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LawEducator, Expert

Yes, that is correct and if you need an H1b later, you can do that as well.

Customer
Ok If I go to India for maternity leave for 6 months while on j2 as I am pregnant and due in June then every other 6 months I go to India will I fulfill the requirement of 2 years
Customer
While on J2
Customer
Also who will file the J2 application for me
Customer
Kindly let me answers for both queries
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LawEducator, Expert

Sure, sorry, I was dealing with several other issues.

Your husband can file the J-2 for you

The 2 year requirement means 2 years not every 6 months I am afraid. It is 2 years continuously.

Customer
Ok.
Customer
Should I take help from lawyer to help me file for J2
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LawEducator, Expert

I would hire a local attorney, yes, I mentioned that yesterday.

Customer
For J2 can we self petition
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LawEducator, Expert

You can if you want, but I would use an attorney

Customer
you don’t institutional sponsorship for j2 dependent right?
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LawEducator, Expert

I do not suggest you do it on your own, I would use an attorney, which is what I mentioned yesterday to you too.

Customer
I will use an attorney but for going to J2 do I need my husband’s institutional support
Customer
Will I have to travel outside the US for my j2
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LawEducator, Expert

You do not have to leave the US to get the J2 if you were both in the US at same time, but you would your husband's employer's support.

Customer
Me and my husband entered US at the same time. He went to residency (physician) and I am a researcher
Customer
But if the J1 is subjected to 2 year home residency rule then Changing to J2 visa cannot be done within the US
Customer
Is that true
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LawEducator, Expert

Is that true, no, the USCIS may require you to leave the US to get your visa stamped but that doesn't mean you have to go to your home country you can go to Mexico or Canada to the US Embassy and get it stamped.

Customer
But I have filed for my I526 through EB5 that is green card. Can I travel outside US
Customer
J visa is non immigrant intent
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LawEducator, Expert

You can with an advance parole document. You can apply to leave and return.

Customer
Am I eligible for that advance parole?
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LawEducator, Expert

You can be, it is up to the reason for leaving and the USCIS officer.

Customer
But I am not in the adjustment of status step now
Customer
I have just filed for my first step of eb5 which I526
Customer
why do I need advance parole
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LawEducator, Expert

There is no prohibition against leaving and re-entering the U.S. while the I-526 is being processed, but you may encounter issues with border officials regarding your intent if you enter with a nonimmigrant visa as the filing of the I-526 can be viewed as evidence that you intend to immigrate to the U.S. permanently.

This is why you need to consider filing for advance permission to reenter, to prevent some border agent from denying you to reenter, that is why. Travel is not prohibited, but they can claim you are coming back with improper intent.

Customer
advance parole will help in that case
Customer
Hi
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LawEducator, Expert

Yes

Customer
Ok
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LawEducator, Expert

Okay, now it is 6:30PM, I have been on since 6:30 AM, you have a wonderful rest of your night.

Customer
what should be my order of filing?
1. J2 dependent visa
2. No objection trying for waiver
3. Advance parole for stamp
4. EAD for J2 workingCan all this be filed together
Customer
It is 5:30 EST
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LawEducator, Expert

And I am wrapping up and I am not a site employee nor am I your attorney.

You have a wonderful night.

Customer
Ok thanks
Customer
Will talk tomorrow
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LawEducator, Expert

You are welcome

Customer
Have a nice day
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LawEducator, Expert

You too.

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