HRR after absense from US

[Sergey Bronskov]

Here is my "case"/experience and 2 questions.

Went to the US on Muskie with J-1 visa with a 2-year HRR. Left the US right after the end of the program and went straight to a PhD program in Europe. Now almost finished the PhD, so almost 5 years elapsed since the end of my Muskie studies. During this time, went once more to the US for 3 months on another J-1 visa also with "subject to 212(E) (3 years ago as of now). Now have a valid B1 visa, on which went travelling to the States for very short periods of time.

Got an offer for a job at a university in the US a month ago. They are now in the process of applying for my H1-B visa. Over the last 5 years, I have spent at the home country about 6 months in small bits.

(1)Did someone have a similar experience, i.e. applying for the H-1 visa after a considerable absense from the US, and having HRR? Do they raise the issue at the Embassy? (I will have to go the US Embassy in a European country). Share your experience please!

I know of at least one specific example where a person in the identical situation went to get H-1 visa without any problem, and without the Embassy raising this issue.

(2) If this issue is raised at the Embassy, what documents exactly are being asked for as proof of fulfillng the HRR? I am asking because after I get H-1 (hopefully), during the 6 years while in the US, I will make sure that I accumulate 2 years in total at home and want to make sure I collect all papers that might be needed.

Thanks a lot in advance!

Sergey

[Liuka]

(2) If this issue is raised at the Embassy, what documents exactly are being asked for as proof of fulfillng the HRR? I am asking because after I get H-1 (hopefully), during the 6 years while in the US, I will make sure that I accumulate 2 years in total at home and want to make sure I collect all papers that might be needed.

Thanks a lot in advance!

Sergey

The thing is that you have to accumulate 2 years at home BEFORE you get H1 visa, not after and during your H1 status.
We'll see if you get lucky, but in general they'd ask for passport stamps, rental agreements, utilities receipts, pay stubs from your country, etc. to show that you in fact were at home.

http://a257.g.akamaitech.net/7/257/2422 ... r41.62.pdf

[Sergey Bronskov]

Dear Liuka,

Thanks for your reply. I understand that the law forbids you H-1 visa before the fulfilment of HRR. But I guess my question was: "assuming" H-1 was obtained anyway by virtue of not being asked anything and not giving any false information, when this question comes up again in Green Card application process, having "served" the 2 years, will this help?

Sergey

[Svetlana Boukhny]

Very unlikely. Moreover, the 2-year home residency requirement is a continuous 2-year period and not 2-3 months here and there, accumulated over a period of time.

[kz]

Very unlikely. Moreover, the 2-year home residency requirement is a continuous 2-year period and not 2-3 months here and there, accumulated over a period of time.

I dont believe this is true. From what i understand you can accumulate 2 years in bits and pieces. Moreover, even a period of a little less than 2 years (1 year and 10 months for example) might be sufficient.

There was a topic here called 2YHRR or something like that, search for it...

[Svetlana Boukhny]

You are right; I misspoke. I was thinking of the one year one has to be physically outside the US after having reached the 6 years in H-1B status, which would then allow the person to restart another 6-year period.

For the J-1, you CAN aggregate the time in the home country for a total of 24 months, but you have to be able to document EVERYTHING.
(1) Any time you return to the home country, you start accruing time-- the trick is to document it with entry passport stamps, and other "hard" documentation that you lived there, like a lease, job, bank account, credit card purchases, etc.
(2) The time does not have to be continuous, it can be in the aggregate, so you could return home for 6 months, then spend 3 months in another country, and then return home and accrue another 18 months to satisfy a total of 24 months.
(3) It does have to be time spent in your home country; I think the only case in which time spent in a third country qualifies is if the alien is in the third country at the request of the home government. E.g., Russian comes to U. S. on J-1 with 212(e) requirement, returns to Russia, and then Russian government job sends her to France for 1 year, she can count the time spent in France towards meeting the 2 year requirement.
(4) Time spent on vacation trips to the U. S. do not count towards accruing the 2-years back home, but neither do they re-set the clock to 0, just have to go back home to accrue more time up to a total of 2 years.

The problem or issue is that if you are not able to aggregate the necessary two years before completing your J-1 program, you do not have a basis for the change of status to H-1B. And if you do not have another lawful nonimmigrant status on which to come to the US, you pretty much have to be back in the home country for a continuous period of time to satisfy the rest of the 2-year home residency.

Even if you have a valid B-1/B-2, at most you can be in the US for maybe 6 months at a time. Although you can extend it while here, you are not authorized to engage in LEGAL employment during that time so the time is probably better spent in the home country so you can qualify for the H-1B sooner.

[SK1901]

Если вы сейчас в США по гостевой визе и кто-то неожиданно предложил вам работу, то вы можете поменять статус на H-1B. Только в этом случае вам придется сидеть в США безвылазно, т.к. если вы выедете, то для возвращения вам потребуется виза в паспорте, которую по закону вам дать не могут. Кроме того, вы не сможете получить ГК.

Шансы "проскочить" (без обмана) в посольстве и получить визу не так уж малы. Шансы "проскочить" (без обмана) при получении ГК близки к нулю.

В форме на ГК есть прямой вопрос про J-1 с двухлетним условием. В анкете на визу такого вопроса нет, но есть вопрос "получали ли вы когда-нибудь визу и какую?". Вы можете написать там "B-2" и надеяться, что консул не спросит у вас "а не получали ли вы других виз?". Если спросит и вы скажете, что да, то вопрос о двухлетнем условии скорее всего всплывет. Если спросит и вы скажете, что нет, то это будет обман со всеми вытекающими (угроза депортации и пожизненного запрета на въезд). Если не спросит, то это будет не обман, а "Failure to Volunteer Information", что ненаказуемо.

Тем не менее, это все относительно скользкие пути и не слишком перспективные. У вас есть другой путь, абсолютно честный и дающий возможность находиться и работать в США сколь угодно долго - виза O-1. Он сложнее и дороже, но достаточно реален для вас, человека с PhD и научными работами. На вашем месте я бы его и выбрал, если, конечно, работодатель не против.

[Svetlana Boukhny]

O-1 is always an option, but again does not resolve the issue of how to gain permanent residence without first having satisfied the 2-year home residency requirment or having obtained a waiver thereof.

As for the change of status to H-1B, this is not possible from J-1 with the condition, unless you are extremely lucky and just breeze through the USCIS without questions. However, this is unlikely, as part of the H-1B petition, you'd have to providie your passport pages and the J-1 visa will be evident there. It's likely that a RFE (request for evidence) will be issued to explain whether or not you are subject to the condition or not. They will likely request a copy of the IAP-66 or the DS-2019 form and that will clearly state the 2-year home residency requirement.

[SK1901]

O-1 is always an option, but again does not resolve the issue of how to gain permanent residence without first having satisfied the 2-year home residency requirement or having obtained a waiver thereof.

There is no limitation for alien's total period of stay in the United States under section 101(a)(15)(O)(i) of the Act. The guy will work in the academy; people have long vacations there. He can simply accumulate those two years.

As for the change of status to H-1B, this is not possible from J-1 with the condition

The change to any status (except A and G) directly from a J-1 with HRR is not possible. The change to any nonimmigrant status (including H-1B) from a subsequently acquired status (B-2, F-1, etc.) is possible even if one was a J-1 with HRR sometime before and never fulfilled the requirement.

The adjustment of status, obtaining an immigrant visa, or an H-1B visa in an embassy abroad is not possible for a former J-1 until the requirement is fulfilled or a waiver is obtained.

[Svetlana Boukhny]

This is true. I don't know how practical it is, as most people want to obtain permanent residence or at least qualify for being able to submit the application right away, since there are likely issues with family members, etc. who want to be able to work and all that. I don't know the specific situation this person is in, but yes, theoretically, it is all doable and a strategic plan is put into effect for how and when to satisfy the requirement and be eligible for adjustment.

[Sergey Bronskov]

Spasibo bolshoe, Svetlana Boukhny i SK1901, this is indeed very helpful.

The O-1 option is interesting, I will study more about it. It may be better than getting an H-1 in the embassy (showing all visa pages and IAP, but hoping that they will feel that a lot of time has passed and the HRR was fulfilled), and then trying to accumulate the missing 1.5 years while working on H-1 before applying to GC. This plan will not let my wife work and I will not be able to apply to GC right away, I will have to wait until all 2 years were spent at home.

Any source to point to about O-1 off the top of your head, guys? Thanks again.

Sergey

[SK1901]

http://faq.visapro.com/O1-Visa-FAQ.asp

I know someone whom those guys helped, but it was not an O-1 case. In any case it's a good FAQ. I hope you won’t be discouraged after reading the requirements and you won’t feel you are not “extraordinary enough”. Yes you are According to what I heard, you do not necessarily have to be a genius to qualify for an O-1; being just a gifted guy with a gifted immigration attorney is sufficient.

[Liuka]

Spasibo bolshoe, Svetlana Boukhny i SK1901, this is indeed very helpful.

but hoping that they will feel that a lot of time has passed and the HRR was fulfilled), and then trying to accumulate the missing 1.5 years while working on H-1 before applying to GC. This plan will not let my wife work and I will not be able to apply to GC right away, I will have to wait until all 2 years were spent at home.

Any source to point to about O-1 off the top of your head, guys? Thanks again.

Sergey

I think you will have the problem in the future when you apply for GC, and they will start asking for proof that you have completed HRR and will see that the dates of completion coinside with your being in H1 status. Of course, they will tell you -- how were you able to obtain H1 visa? Ohhh, you mean you concealed the information about you ever being a subject to HRR?

There is no such thing as "failure to volunteer information" when you are dealing with INS. There is such thing as misrepresentation and fraud, and it is punishable by permanent bar.

I was a subject to HRR in 1994, and I am now applying for no-objection waiver. Perhaps, you could either try to get a waiver, or get another J-1 visa instead of H1, or O1 visa. This is just my opinion, and believe me I know how desperate you are. So am I, but out of fear I decided to go the long and risky road of getting a waiver.

Good luck to you, whatever you decide to do. Let's hope everything goes according to a plan.

[SK1901]

There is no such thing as "failure to volunteer information"

Ну зачем же вы так уверенно говорите неправду. Я же это словосочетание не с потолка взял:

http://foia.state.gov/masterdocs/09fam/0940063N.pdf

9 FAM 40.63 N4.2 Differentiation Between Misrepresentation and Failure to Volunteer Information
(TL:VISA-175; 01-15-1998)
In determining whether a misrepresentation has been made, it is necessary to distinguish between misrepresentation of information and informa-tion that was merely concealed by the alien's silence. Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA 212(a)(6)(C)(i)

или вы хотите сказать, что ответ "Yes, 02/24/2002, Moscow, B-2" на вопрос "Have You Ever Been Issued a U.S. Visa? When? Where? What type of visa?" это обман? . Кстати, в электронном варианте анкеты нужно тип визы из списка выбирать и поле только одно. Что прикажете делать?

[Liuka]

I am not arguing about the laws and definitions. What I meant was that nobody at INS will care to actually look into the case and see whether he misrepresented the information, or just failed to disclose. They will claim that it's fraud, and that's it. They don't even ask you to explain, just cancel your H1 status at the interview and offer you voluntary departure. Of course, he will then hire a lawyer who will try to prove that it was all good intent, etc., but who needs the headache? Does he want to risk his future?

Come on, the guy knows he is not supposed to get H1 until he fulfils his HRR, yet, he receives H1 by "failing to disclose", and then fulfils his HRR in segments and then applies for GC and then says that he did in fact have HRR and fulfiled it in segments while being in H1 status with H1 visa. Do you not see where and how he may be caught and not given a chance to explain that the application for H1 visa didn't ask him about all kinds of status that he had, only about visas and only had one field for visa. Do you really think INS will just say, oh, yes, we see that we made a mistake on the form by not asking the right question and then forgive him? Just for the sake of the argument, do you agree that such a scenario could happen?