Confusing J1 visa situation: 212(e) rule

[magnolia_s13]

Hi there, 

I have a rather complicated question to ask about the J1 visa waiver for the 212(e) home country presence rule. I'm not sure what procedure to follow, as in how to get the waiver. Be great if anyone familiar with J1 visa waiver can give me some suggestions. Thanks!! 
1) I am an Indian citizen, currently on a J1 visa. 
2) I got my J1 visa in Germany in January 2012, where I was living at the time, and the consular at the US embassy in Germany did not subject me to the 212(e) home country rule after asking me a few questions about my academic history. I have not worked or studied in India since 1998. 
3) Anyway, when I went to get my visa renewed (Aug. 2013) at the US embassy in Bombay/Mumbai, the consular did subject me to the 212(e) rule. 

Here's my quandary, I suppose I have to apply for a waiver now, however, I renewed my visa in Bombay in August (2013) and my J1 visa expires in January (2014). This gives me about 4 months to apply for a waiver. From everything I have read about the waiver process, it takes 6-9 months to apply for one. I am a little concerned about this given that I'm in a time crunch. If my first J1 visa had the 2-year rule imposed on it, I would have had enough time to apply for a waiver. 

Any advice on how I should proceed will be much appreciated!!

Thanks!!

[jairichi]

Hi there, 

I have a rather complicated question to ask about the J1 visa waiver for the 212(e) home country presence rule. I'm not sure what procedure to follow, as in how to get the waiver. Be great if anyone familiar with J1 visa waiver can give me some suggestions. Thanks!! 

1) I am an Indian citizen, currently on a J1 visa. 

2) I got my J1 visa in Germany in January 2012, where I was living at the time, and the consular at the US embassy in Germany did not subject me to the 212(e) home country rule after asking me a few questions about my academic history. I have not worked or studied in India since 1998. 

3) Anyway, when I went to get my visa renewed (Aug. 2013) at the US embassy in Bombay/Mumbai, the consular did subject me to the 212(e) rule. 

Here's my quandary, I suppose I have to apply for a waiver now, however, I renewed my visa in Bombay in August (2013) and my J1 visa expires in January (2014). This gives me about 4 months to apply for a waiver. From everything I have read about the waiver process, it takes 6-9 months to apply for one. I am a little concerned about this given that I'm in a time crunch. If my first J1 visa had the 2-year rule imposed on it, I would have had enough time to apply for a waiver. 

Any advice on how I should proceed will be much appreciated!!

Thanks!!

First, I believe you know that once a waiver is obtained from USCIS you are allowed to be in J1 status till the last date of your current DS2019. After that you need to change your status and you cease to be no longer in J1.

It takes anywhere from 3 months to a year to obtain a waiver as it depends how quickly you can get No Objection Certificates from India. 

The procedure is as follows:

Download and fill details of NORI application from Indian consulate website that has jurisdiction on your state. Send it to them with all supporting documents and required fee. After getting it notarized from Indian consulate send it to three concerned authorities in India. They would send a NOC to concerned Indian consulate and a copy might be sent to you. Meanwhile fill DS3035 and get a barcode number. Once all three NOCs are received fill the required form and submit to Indian consulate along with required fee and barcode document. They would issue their own NOC and would send it to Indian embassy and a copy to you. Indian embassy would forward it to DOS and later if everything is good DOS will forward a favorable recommendation to USCIS. 

 

The only place where it would take time is getting all three NOCs from concerned authorities in India. Other than that it is quick.

[jassi1239]

First, If you are holding Indian citizenship and arrived on J1, by default you are subjected to HRR (I dont think consular can waive that).

Generally J1 is good for upto 5 years. So if you were on J1 only from 2012 you got 3 more years (some places offer 1-year extensions).

Anyway, talk to your employer before you apply for waiver. As once you apply for Waiver (DOS) you cant extend J1 anymore and your employer has to file H1. If they cant extend your J1, you need an employer that can file H1 for you before you apply for waiver. In that case you are right, you have very less time. I suggest not to apply for waiver unless an employer is willing to sponsor you an H1. But, Get NORI letters as soon as you can.

[jairichi]

First, If you are holding Indian citizenship and arrived on J1, by default you are subjected to HRR (I dont think consular can waive that).

Generally J1 is good for upto 5 years. So if you were on J1 only from 2012 you got 3 more years (some places offer 1-year extensions).

Anyway, talk to your employer before you apply for waiver. As once you apply for Waiver (DOS) you cant extend J1 anymore and your employer has to file H1. If they cant extend your J1, you need an employer that can file H1 for you before you apply for waiver. In that case you are right, you have very less time. I suggest not to apply for waiver unless an employer is willing to sponsor you an H1. But, Get NORI letters as soon as you can.

It is not by default. Depends on the program, subject code, sponsorship from Indian govt. etc.

[jassi1239]

Thanks, I didn't know that.

[pontevecchio]

The OP should discuss the issue with the firm of Murthy. An advisory opinion from the state department may be necessary. Speed is of the essence.

[jairichi]

The OP should discuss the issue with the firm of Murthy. An advisory opinion from the state department may be necessary. Speed is of the essence.

Most of the time when it is stamped in passport that 212(e) applies then the advisory opinion is "yes you are subject to 212 (e)

[magnolia_s13]

Great - thanks! That was super helpful! 

[m_in_philly]

mangolia_s13,

 

do you know why you were subject to 212(e) rule the second time when you renewed your J-1?

Usually 212(e) is decided by the area code that appears in box #4 on DS-2019 under "Subject/Field code", Exchange visitor program number in box #2, and whether your salary on J-1 is funded through either US or Indian govt agency.

 

Do you know if any of that changed from your old J-1 status to the new one?

 

I am curious to know because I am currently on J-1, my J-1 has expired, and I have an endorsement saying I am NOT subject to 212(e) 2 year rule on my visa and DS-2019, but I may have to visit India before my DS-2019 duration is over, in which case I need to renew my J-1. So just wondering.

[jairichi]

I am curious to know because I am currently on J-1, my J-1 has expired, and I have an endorsement saying I am NOT subject to 212(e) 2 year rule on my visa and DS-2019, but I may have to visit India before my DS-2019 duration is over, in which case I need to renew my J-1. So just wondering.

What is this endorsement? Get an advisory opinion from DOS. 

[m_in_philly]

jairichi,

 

I don't think getting advisory opinion right now when I may have to renew my J-1 early next year makes sense, because usually advisory opinion is sought when one does not plan to extend/renew their stay. If I seek the advisory opinion right now, once I renew my J-1, it will become void and will have to seek it again!

 

"What is this endorsement?"

Every J-1 and DS-2019 has endorsement regarding 212(e) rule, whether the visa holder is subject to 212(e) rule or not. If you have seen a J-1 or DS-2019, you will know!

[jairichi]

jairichi,

 

I don't think getting advisory opinion right now when I may have to renew my J-1 early next year makes sense, because usually advisory opinion is sought when one does not plan to extend/renew their stay. If I seek the advisory opinion right now, once I renew my J-1, it will become void and will have to seek it again!

From where did you hear this? FYI, I got advisory opinion after my 2nd DS2019. 2 years after that I applied for my waiver. Once you are subject to 212(e) advisory opinion does not change meaning it does not get void as advisory opinion will not change every year. There is no expiry date.

 

"What is this endorsement?"

Every J-1 and DS-2019 has endorsement regarding 212(e) rule, whether the visa holder is subject to 212(e) rule or not. If you have seen a J-1 or DS-2019, you will know!

I had renewed J1 visa 3 times and had 5 DS2019s. My DS2019 did not have 212(e) but my visa indicated I am subject to it.

[veeus18]

Most of the time when it is stamped in passport that 212(e) applies then the advisory opinion is "yes you are subject to 212 (e)

 

Actually, on my passport, the visa says that 'not subject to 2 yr rule' whereas on my DS2019 it says I am subject due to special skills.

Has anyone faced this situation before?

 

-thanks much. 

[jairichi]

Actually, on my passport, the visa says that 'not subject to 2 yr rule' whereas on my DS2019 it says I am subject due to special skills.

Has anyone faced this situation before?

 

-thanks much. 

In my case it was the opposite. Get an advisory opinion from Department of State. 

http://travel.state.gov/visa/temp/info/info_5502.html

[magnolia_s13]

m_in_philly

 

nope. nothing had/has changed from the first time i got my ds-2019. i was told by the consular in bombay that i was subject because of my citizenship, not because of the programme code or the funding - just the citizenship. 

 

either way, i think most indians are subject to this rule, and it is worth looking into the waiver process. 

[Rimpy]

Hi Magnolia,

 

I am pretty much having the same situation as you are.

I would like to talk to you if possible at the earliest.

If feasible, please reply back to me **************@rediffmail.com

 

thanks in advance!

 

[veeus18]

I sought an advisory opinion  regarding 2 yr rule, sent documents on Dec 9th, finally received an email March 20th, saying they had received my documents January 2nd, and a decision was made on March 14th. The decision was "Subject".[My visa says 'not subject', but DS-2019 said 'subject' so I had sought an opinion.

 

My DS-2019 expires August 31, 2014 (it was issues Sept, 1, 2009), and my visa expires Sept. 30, 2014. Given that I am just starting my process for obtaining NOC what are my best options going forward?

Also please could someone point me to the post with the 3 stages outlined for applying for NOC? I have seen it before on this forum.

 

Thanks much.

 

 

 

Actually, on my passport, the visa says that 'not subject to 2 yr rule' whereas on my DS2019 it says I am subject due to special skills.

Has anyone faced this situation before?

 

-thanks much. 

[Rimpy]

Hi Veeus18,

 

we have exactly the same situation as u are in. the only difference is that we are now going to start with our process and i hope you might have already started with it. 

I have a small query  "are you going to get extension for your DS2019" for another yr in case needed. As the review says that the NOC from India (stage II) can take up to 6 months.

 

 

thanks

[jairichi]

Hi Veeus18,

 

we have exactly the same situation as u are in. the only difference is that we are now going to start with our process and i hope you might have already started with it. 

I have a small query  "are you going to get extension for your DS2019" for another yr in case needed. As the review says that the NOC from India (stage II) can take up to 6 months.

 

 

thanks

Your DS2019 is irrelevant to Indian authorities.

[Rupak Bhattacharya]

Hi

 

 I joined at UCSD under J1 visa and my DS2019 is valid up to 04/2020. Recently, I got an 212(e)waiver from DOS under "No Objection".

 

Unfortunately my visa stamp is expired and I need to apply a new one while entering USA. Pls let me know whether I could apply a new visa stamp with my existing DS2019 document.

if yes , am I going to have 212(e) restriction again on my new visa stamp???

 

Thanks