Hi juandc,
1) If her Visa is changed from J-1 to H-1 does the "2 year foreign
residency requirement" still apply to her or does that requirement go
away?
If the appropriate steps are followed (the government agency requests
a waiver first and it is granted) and the requirements are fulfilled
(three year employment contract), then the 2 year foreign residency
requirement would be waived.
A BRIEF OVERVIEW OF THE J-1 WAIVER AND H-1B PROCESS
"At this time, government agencies willing to request waivers include
the Department of Agriculture, the Department of Veterans Affairs, and
the Appalachian Regional Commission. State departments of health are
also allowed to request waivers of the foreign residence requirement.
From one of these stages, the process moves to the United States
Information Agency (USIA) which in turn would recommend or not
recommend a waiver to the Immigration and Naturalization Service
(INS). The INS then decides whether to grant the waiver."
Obtaining a waiver of the 2 year foreign residence requirement is only
one step in the process. The other step involves obtaining an H-1B
visa. The physician must submit a three year employment contract for
full-time practice in a shortage area. The salary of the physician
must be checked with local and federal Department of Labor authorities
to make sure a prospective employer would be paying the doctor the
prevailing wage. If the physician does not remain in the shortage area
for three years, the two-year foreign residence requirement is once
again imposed upon the doctor.
A prospective employer and physician should know that this is not a
short process and could very well take several months to complete.
A physician will then have an H-1B visa, a waiver of the 2 year
foreign residence requirement, and the ability to change to a
different visa or adjust status once the requirments of the contract
have been completed."
http://www.imgi.org/ilw.html
Who is Eligible to Apply for a Waiver?
http://uscis.gov/graphics/howdoi/exchvisit.htm
INSTRUCTIONS FOR APPLYING FOR A WAIVEROF THE TWO-YEAR FOREIGN
RESIDENCE REQUIREMENT PERTAINING TO EXCHANGE VISITORS ON THE J-1 VISA
http://travel.state.gov/visa/temp/info/info_1288.html
Wisconsin J-1 Visa Waiver Program
Program Description
http://dhfs.wisconsin.gov/localhealth/J_1VISA/description.htm
2) When we get married does she automatically qualify to become a
resident? (from the h-1 visa)
No because the three year employment contract must be fulfilled.
After the waiver is approved and she starts working on the contract,
she will be able to apply for permanent resident status by filing the
I-485 and I-140 NIW concurrently and file the I-130 too. At the end of
the 3 year employment contract she will be able to switch the pending
I-485 to the family based 1-130.
Immigration Library: Concurrent Filing of I-140 and I-485
"The only restriction is that the visa number must be immediately
available for the category in order to file the I-485 application.
Since visa numbers are available to all EB-1, EB-2 and EB-3
categories, any person who is a beneficiary (or applicant) of an I-140
petition which has already been filed is now eligible to file I-485
application. Family members will be eligible to file I-485 along with
the principal alien. Additionally, applications for Employment
Authorization (EAD) and Advance Parole may be filed with the I-485
application.
For all pending I-140 petitions, the beneficiary (or applicant) may
file his or her I-485 adjustment of status application immediately by
submitting the Receipt Notice of the pending I-140 with the I-485
application.
The new rule offers tremendous benefits to the aliens who are applying
for green card through employment-based petitions."
http://www.hooyou.com/i140&i485/index.htm
Frequently Asked Questions about Concurrent Filing of I-140 & I-485
Q: I am about to file an immigration petition under the NIW. Does this
new rule mean that I may also file my adjustment of status at the same
time?
A: Yes, you may file your I-140 immigration petition and your I-485
application at the same time.
Q: I am in J-1 status and am subject to the 2 year foreign residency
requirement. I haven't filed my foreign residency waiver yet. May I
still take advantage of this new rule?
A: No. Although you may still file your I-140 at this time, you will
need to obtain waiver of the foreign residency requirement before you
may file for the adjustment of status.
Q: I am in J-1 status and am subject to the 2-year foreign residency
requirement. I filed my foreign residency waiver with the State
Department but have not gotten it approved yet it by the INS. May I
still take advantage of this new rule?
A: Once you have received the approval from the State Department, you
may take advantage of this new law.
http://www.hooyou.com/i140&i485/faq.htm
I hope I've helped to sort this out for you but as always, this is for
information purposes only and you'd be wise to consult a professional
for advice specific to your situation. If you have any questions,
please post a clarification request *before* closing/rating my answer
and I'll be happy to reply.
Thank you,
hummer
Google Search Terms Used: j-1 h-1b waiver process I-485 I-140 niw
concurrently uscis
I also searched the USCIS website and my own immigration research. |
Clarification of Answer by
hummer-ga
on
01 Jun 2005 19:56 PDT
Hi again, juandc,
If your fiancé is a medical graduate, she's stuck with the 3 year rule
and getting a waiver based on a government agency application. This is
because Brazil had to provide a letter of need attesting to its
requirement for trained physicians. Here is the link to the law.
INA: ACT 214 - ADMISSION OF NONIMMIGRANTS.
(l) 3/ (1) C
"(ii) the alien agrees to begin employment with the health facility or
health care organization within 90 days of receiving such waiver, and
agrees to continue to work for a total of not less than 3 years"
(l) 3/ (1) D
"(2) for a total of not less than 3 years only in the geographic area
or areas which are designated by the Secretary of Health and Human
Services as having a shortage of health care professionals, 4/ 4b/
except that? "
http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-22/slb-3288?f=templates&fn=document-frame.htm#slb-act214
A few more interesting links -
Q. What is required for a waiver based on an Interested U.S.
Government agency (IGA) application?
A. Submit the following to the Waiver Review Division:
* A letter from the designated official of the Interested U.S.
Government agency, explaining why granting such a waiver is in the
public interest of the U.S. and why it would be detrimental to the
agency if the exchange visitor returns to the home country to fulfill
the two-year requirement
* A completed Form DS-3035
* Copies of all DS-2019/IAP-66 forms, and
* Two (2) self-addressed, stamped, legal-sized envelopes.
http://travel.state.gov/visa/temp/info/info_1294.html#interested
INSTRUCTIONS FOR APPLYING FOR A WAIVER OF THE TWO-YEAR FOREIGN
RESIDENCE REQUIREMENT PERTAINING TO EXCHANGE VISITORS ON THE J-1 VISA
http://travel.state.gov/visa/temp/info/info_1288.html
Waiver of the J Visa Two-Year Foreign Residence Requirement, 212(e)
http://travel.state.gov/visa/temp/info/info_1296.html
Applying For a Waiver of the Two-Year Foreign Residence Requirement
Pertaining To Exchange Visitors On The J-1 Visa
Estimated Processing Time May Vary
The processing times will vary depending on the type of application
you have submitted. The times given below are estimates only from the
date of receipt of all documentation necessary to adjudicate the
application.
Interested U.S. Government Agency.......................4 to 8 weeks
http://travel.state.gov/visa/temp/info/info_1295.html
If she is not a medical graduate, she could apply herself for a "no
objection" waiver from Brazil. In this case, there would be no
obligation to work 3 years, and after the waiver is approved and you
get married, she would be able to file for an Adjustment of Status
(I-485).
1) Apply for the waiver and wait for approval
2) Get married
3) File Form I-130 & I-485 concurrently
If she is not a medical graduate, let me know and I will post
instructions for applying for a "no objection" waiver.
I hope that helps!
hummer
|
Clarification of Answer by
hummer-ga
on
04 Jun 2005 09:11 PDT
Hi juandc,
Following is an 11-page .pdf which will hopefully shed some light. I
would think that if the NIH offers to recommend a waiver on her
behalf, that would be wonderful as they do not make that decision
lightly. Also, as her "government agency", I'm sure they would be the
ones to ask about exactly which category she is in.
UNDERSTANDING THE TWO-YEAR HOME RESIDENCE REQUIREMENT AND WAIVERS
http://www.klaskolaw.com/newspubs/KlaskoArticles/00074152.pdf
"Descriptions of the eight categories administered through the
Academic and Government Programs Division may be accessed by clicking
on the category in the chart below. The information included in each
description is cursory, and serves only as a brief introduction to
that category. In no way is it intended that the information provided
in this section replace or substitute the program regulations.
Additional information specific to the category, such as a listing of
sponsors designated to administer a program in that category, a FAQ
Sheet, or related web sites, may be offered with its description, and
if so, may be accessed by clicking on the item of interest."
http://exchanges.state.gov/education/jexchanges/academic.htm
Regards,
hummer
|
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