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Subject: Immigration (USA) FAQ: J Visa questions and answers (part 4 of 6)

This article was archived around: Mon, 21 Dec 1998 14:00:53 GMT

All FAQs in Directory: us-visa-faq
All FAQs posted in: alt.visa.us, misc.immigration.usa
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Archive-name: us-visa-faq/part4 Last-Modified: 21 December 1998
The USA Immigration FAQ is maintained by Rajiv S. Khanna [rskhanna@immigration.com] If you have access to the Web you can access the FAQ from http://www.immigration.com Many FAQs, including this one, are available via FTP on the archive site rtfm.mit.edu in the directory pub/usenet/news.answers. The path for this faq is /pub/usenet/news.answers/us-visa-faq/part4. To get the FAQ by E-mail, you should send a message to mail-server@rtfm.mit.edu with send usenet/news.answers/us-visa-faq/part4 in the body of the message. Please see part1 of this faq for standard disclaimers. Individuals are encouraged to submit corrections, questions and answers to rskhanna@immigration.com directly. In many answers below, submitters are noted in parentheses at the beginning of comments. (Comments may be slightly edited.) "WE CLAIM NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. APPLICATION OF LAW CAN VARY DRASTICALLY ACCORDING TO THE FACTS OF A PARTICULAR CASE. THE FAQ IS NOT MEANT TO BE SPECIFIC LEGAL ADVICE. IT IS ONLY A STARTING POINT. MUCH OF THE INFORMATION CONTAINED IN THE FAQ IS PROVIDED BY LAYPERSONS. PLEASE USE YOUR OWN JUDGMENT." Questions marked with a <<New>> indicate questions new to this issue; those with significant changes of content since the last issue are marked by <<Changed>>: Q1:-If an interested U.S. Govt. agency sponsors me, will I get a waiver? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] I am not aware of anyone who has been refused an IGA (Interested Govt. Agency) waiver. Q2:-When can an interested U.S. Govt. agency sponsor me for a waiver of the HRR? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] In many cases, you need to work directly for the interested Government agency or work for them through a contractor. But working for the agency is NOT a requirement. Q3:-What are the steps for getting a NORI? Ans:-Note: The following comment focuses on Indian nationals. But, it can be equally applicable to people from any country. [From, Ajit, ]ajit@austin.ibm.com] 1. Begin the process well in advance of the expiration of your visa. Six months to a year ahead would be a good idea. 2. Contact your regional (Indian) consulate for the application forms for obtaining the "no obligation to return (to India)" (NORI) statements. 3. Fill out the forms in quadruplicate (instructions provided), have them notarized and send them back to the consulate. 4. The consulate will return the forms with its endorsement and a letter stating that you need to get clearance from 3 agencies (in India) (addresses provided). These agencies are: 1. Your local passport office 2. Home minister of your state government 3. Dept. of Education, Ministry of Human Resources, New Delhi Note: If you are a practicing medicine you need to get an additional clearance (Ministry of Health, I believe) 5. Send the forms to India and preferably have your family personally get these clearances. You may need to get clearances from the police and tax authorities. 6. Each of those agencies will send back a NORI statement to you and simultaneously to the (Indian) consulates in US. 7. Send the NORI statements to your regional consulate. They will forward a letter to the (Indian) Embassy. 8. The (Indian) Embassy will send a NORI statement to the United States Information Agency (USIA). 9. The USIA will send you a form to fill. Return this form to them. 10. The USIA will make a recommendation and send it to the Immigration and Naturalization Service (INS). 11. INS will issue the final waiver. The process after getting the NORI statements (from India) takes about 3 months. The process of getting the NORI statements (from India) could take anywhere from three weeks to a few months, (Maybe it would be better to get these clearances done yourself if you go on vacation). Q4:-Can I change my visa status from J-1 to O-1 (temporary alien worker of extraordinary ability) if I am subject to the HRR? Ans:-[From Rajiv S. Khanna, rskhanna@immigration.com] Adjustment of status is not permitted because of INA Section 248(3), but it is possible to proceed for stateside processing in Canada or Mexico. Q5:-Can an interested U.S. Government agency sponsor me for a waiver if I work for a private company? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Certainly. Your company needs to demonstrate that by hiring you, the USA gets a technological or market edge. Relevant documents should be submitted to the Dept. of Commerce which will then make a decision to sponsor you or not. Q6:-How long does it take for me to obtain the waiver once I submit my papers to the interested Govt. agency? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Approximately 4-6 months (There is no standard time frame though). Q7:-What is the procedure followed in an IGA waiver? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] You first submit the necessary forms and supporting documents to the interested U.S. Government agency. If they decide to sponsor you for a waiver, they send their recommendation to the USIA directly and advise you of their action. The USIA sends you a `Data Sheet' which you need to complete for their review. The USIA then makes a recommendation to the INS to grant the waiver or otherwise. Q8:-How often can I apply for a waiver? Ans:-Every six months. Q9:-Do I need to hire a lawyer to apply for a waiver? Ans:-[From Isidore Rigoutsos, rigoutso@watson.ibm.com] Probably not a good idea given that the necessary overhead (paperwork) is probably more than one can handle. Q10:-Do I need to submit additional documents to the INS for the waiver? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] No. Just sit back, relax and await the final letter from the INS. Q11:-What's a NORI?<<Changed>> [Modified by Andrei P. Kirilenko] Ans:-"No obligation to return [to India]"; also known as a "no-objection" statement. Issued by the home government, through their consulate. Issued routinely by most European countries, but may not help a lot (see next question). Comments by Andrei P. Kirilenko: Well, strictly speaking, NORI means NOR to India (that produced some misunderstanding when I talked with an attorney) Q12:-What happens after the USIA makes a favorable recommendation for the waiver of the HRR? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] The USIA forwards its recommendation directly to the local INS office (the one listed in your data sheet). The immigration then sends you a notice form I-797C indicating the receipt of the recommendation and informs you that it takes 30-60 days to process your case. Q13:-How long does the whole process take? Ans:-[From Isidore Rigoutsos, rigoutso@watson.ibm.com] The period between the day you file with the Department of Commerce and the day USIA makes a decision is in the order of 4 months. To this one should add an overhead of 3 months or so during which period one is preparing the application package: supporting documents, recommendation letters, etc. Q14:-How do I go about applying for a waiver? Do I have to work for the sponsoring agency? Ans:-[From Isidore Rigoutsos, rigoutso@watson.ibm.com] It is *not* true that you have to work for the sponsoring agency. Of course, if you do work for them it helps. More specifically, the following can happen: one works for a certain company doing research or other work that will lead into the development of a product or of a technology that will give the US a market edge or a technological edge. Clearly, any such claim will have to be backed up by company statements, descriptions, recommendation letters etc. Then, an alternative route is through the Department of Commerce. The latter will examine the case and decide whether they want to apply for a waiver on your behalf with USIA. Actually, that was my case; I am currently in the period where USIA has recommended the waiver to INS but the latter have not yet decided. In case you are wondering about the type of my research, I do work on computational/molecular biology and pattern matching. Two more alternatives that I know of are waiver applications sponsored by the Department of Health (for those that are in health science fields), and by the Department of Defense. Q15:-Does marriage to a US citizen help? Ans:-No. If the US citizen was dumb enough to marry a J1 visa holder, her/his problem. (see 'extreme hardship' for unlikely exception). Q16:-Can I pay back the money I got and get out of the HRR? Ans:-No. In this respect, Fulbright grants differ from all other college grants, which, if you don't live up to your end of the bargain, at worst forfeit the loan waiver. Q17:-Does a Canadian Landed Immigrant qualify for special treatment under NAFTA? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] No. Only Canadian citizens qualify. J Visa ------ Q18:-If I get a NORI, will I get a waiver? Ans:-No. The NORI is a necessary condition (for this particular form of waiver), but not sufficient. Generally, the determination is up to the USIA. Fulbright students can generally forget a waiver unless they fall below the threshold (see next question). Q19:-How long does it take for the INS to grant the waiver? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Usually 30-60 days from the date the INS receives the USIA's recommendation. In my case, the INS received the USIA's recommendation (dated March 23, 1994) on April 25, 1994. I received the final waiver letter from the INS (dated June 2, 1994) yesterday. Therefore, it is approximately 6 weeks processing time. Q20:-Who makes the waiver decision? Ans:-It is a combined decision by USIA and INS (with much weight being given by INS to the decision of USIA). Q21:-On what grounds can I get a waiver? Ans:-1) AT the request of a U.S. government agency (NASA, NSA, CIA, ...) If a U.S. govt. agency declares an interest in you and petitions the USIA to waive the HRR. Could be a very good avenue if you work for that agency or do security-related work. [modified by rskhanna@immigration.com] 2) extreme hardship to U.S. citizen or Green Card holder spouse or child: This is a good option if the hardship is likely to be extraordinary. Mere desettlement or economic loss may not be sufficient. 3) political persecution; residents of European countries might not want to pursue this. Residents of the PRC have a blanket waiver (Pelosi bill?). 4) NORI/no-objection: the home government issues a statement of no-objection; seems to be the common and successful approach for Indian citizens. [modified by rskhanna@immigration.com] Q22:-What are the various type of J-1 categories? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] According to USIA regulations [22 CFR 514.2], participants include, but are not limited to, the following types: (a) A student, for the purpose of pursuing formal courses, or any combination of courses, research, or teaching, leading to a recognized degree or certificate, in an established school or institution of learning. Upon receipt of a degree or certificate, a student may be granted up to a maximum of 18 months of practical training provided: (1) The training is needed to round off the academic studies, (2) The training is not available in the student's home country, (3) The training is directly related to the academic program, and (4) The training is authorized in writing by the Responsible Officer of the exchange visitor program involved; (b) A trainee, for the purpose of obtaining on-the-job training with firms, institutions and/or agencies in a specialized field of knowledge or skill for periods not to exceed 18 months; (c) A teacher, for the purpose of teaching in established primary or secondary schools, or established schools offering specialized instruction; (d) A professor, for the purpose of teaching or conducting advanced research, or both, in an established institution of higher learning; (e) A research scholar or specialist, for the purpose of undertaking or participating in research or in demonstrating specialized knowledge or skills; (f) An international visitor, for the purpose of travel, observation, consultation, research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs; or (g) A professional trainee, for the purpose of pursuing clinical training in the medical and allied fields. [modified by rskhanna@immigration.com] Q23:-What are the obvious options for a US work visa for a Canadian Citizen? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Usually three obvious options: L-1 (if they own their business or their employer is transferring them to its subsidiary, affiliate, etc.)), H-1 (if they qualify as a professional) and TN (if their profession is one of those stated in Schedule 2 of NAFTA). Q24:-Does a Canadian Landed Immigrant need a visa to attend school in the US? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Yes. Q25:-Is there a threshold of money received below which a waiver is automatically granted? Ans:-No, but if you received less than $2000, you at least have a chance. Fulbright grantees' applications have been known to be rejected even with grants below that, on the argument that the program itself, beyond monies expended on behalf of an individual, push each individual above that limit. Above that limit, you can only hope to be from the PRC, or use the other avenues described above. Q26:-Do I have to return to my home country? Ans:-Yes. More precisely: country of last permanent residence prior to entering the United States. Q27:-Q: What is the maximum duration that a Canadian Landed Immigrant can stay in the US without returning to Canada? Ans:-A: [from Rajiv S. Khanna, rskhanna@immigration.com] If you are visa exempt, there is no limit according to US law, but check with a Canadian lawyer to determine Canada's view on the issue. Q28:-Q: Does a Canadian Landed Immigrant (Canadian PR) need a visa to visit the US? Ans:-A: [from Rajiv S. Khanna, rskhanna@immigration.com] Definitely No if you are also a citizen of a commonwealth country. Q29:-Q: Does a Canadian Landed Immigrant need a visa to work in the US? Ans:-A: [from Rajiv S. Khanna, rskhanna@immigration.com] Yes. The visa options are the same as for the rest of the world. In addition, Canadian citizens and their spouses and children have the option of TN/derivative visas pursuant to NAFTA. Q30:-I am a graduate student on J-1 visa. Do I need to have a secured job in USA in order to apply for a waiver? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] No Q31:-Is the J-2 visa holder (spouse and children of a J-1 visa holder) subject to the 2-year home residency requirement, too? Ans:-[from Rajiv S. Khanna, rskhanna@immigration.com] Yes Q32:-What are the consequences of seeking an extension of the J-1 status if the J-1 holder has shown proof of abandoning the exchange program? Ans:-[From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil] ******NOTE The USIA has changed its position in this regard. DISREGARD THE FOLLOWING COMMENTS. Please check with competent counsel for latest information in this regard [rskhanna@immigration.com, 08/96]****** The program sponsor will either object to the waiver or refuse the extension of the J-1 status (The program sponsor will not issue a new IAP-66 needed for the extension in most cases. I have known of one case where the sponsor objected to the waiver.). This is because the sponsor will be threatened with exclusion from the exchange program list of the USIA, if they act otherwise. Q33:-What constitutes intent to abandon the exchange program? Ans:-[From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil] ******NOTE The USIA has changed its position in this regard. DISREGARD THE FOLLOWING COMMENTS. Please check with competent counsel for latest information in this regard [rskhanna@immigration.com, 08/96]****** Any of the following 5 conditions is sufficient proof of intent to abandon the exchange program. (1) The USIA receives through diplomatic channels a no-objection statement from the J-1 holder's home government. (2) The USIA receives a statement from the INS stating that the J-1 holder or his/her U.S. citizen (or permanent U.S. resident) spouse will be subject to considerable hardship on account of the HRR. (3) The USIA receives a statement from the INS stating that the J-1 holder will be persecuted in his/her home country on account of his/her political or religious beliefs. (4) The USIA receives a statement from an interested U.S. Government agency stating that the imposition of the HRR would be detrimental to its interests and therefore, requesting a waiver on the J-1 holder's behalf. (5) The USIA receives a completed data sheet from the J-1 holder. Q34:-Does a J1 have any advantages? Ans:-Yes. You get 36 months of practical training (instead of 12 months for an F1). Also, your spouse may work on a J2 visa during your stay after getting permission from INS. Q35:-What is USIA's address? [from Michael Galperin, MYGALP01@ulkyvm.louisville.edu] Ans:-YOU DON'T WRITE TO USIA. It is done either by your embassy or by interested US agency (NIH, DHHS, DOE etc.). Anyway, the address is (courtesy of our International Center): US Information Agency Office of the General Counsel Waiver Review Office Washington DC 20547 Phone (202)-475-2385 Q36:-Does writing to your congress person help? Ans:-No, you just get a longer letter of denial. Q37:-What is the USIA policy regarding approval of J-1 extensions while a waiver of HRR request is pending? [From Rajiv S. Khanna, rskhanna@immigration.com] Ans:-As of September 1996 this is the USIA policy. USIA has stated that extensions may be allowed for waiver applicants BUT once USIA has issued a favorable recommendation for waiver (to INS), an extension will no longer be possible. Q38:-Can I reside in my home country and work in another country? Ans:-Currently not. Apparently, there are rumblings about making residency and work in any of the European Community countries equivalent, but that has not happened. Q39:-Can I petition for change of status from J-1 to H-1 as soon as I receive the USIA's recommendation or do I need to wait for the final waiver from INS? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] You don't have to wait for the final waiver from INS for petitioning for the change of status. You can do it as soon as you receive a favorable recommendation from the USIA. Q40:-Can I visit the United States while serving my two-year sentence? Ans:-Yes, but the time is (supposedly) subtracted from your residence time. Q41:-Can I apply for H-1B, permanent residency, etc. while serving the HRR? Ans:-Yes. The visa will be issued the day your two years are up. This is particularly advisable for those who can get visas without labor certification (family preference). You can apply at the US consulate in your home country. Q42:-What do I need to show after the two years to prove that I resided and worked in my home country? Ans:-Good question. Anybody know? Q43:-I am a PH.D student in the humanities. After I finish my studies, how long is my practical training period on J-1? 18 months? 3 yrs.? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Not sure about this one too. Q44:-Will it help me to get a waiver to switch to F-1 visa (rather than just to a different sponsor)? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] [modified by rskhanna@immigration.com] Changing status to F-1 will not help. Q45:-One can not appeal a denial to an application for a waiver based on a "no objection" statement. Can one apply again on the same grounds? Is there any hope of success in such a case? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Don't know about this one. The law merely says that you can apply for a waiver every 6 months. I don't know if there is a restriction on the # times you can apply. Also, I am not sure if you can apply on the same grounds more than once. You may want to consult an attorney. Q46:-If I win a green card in a lottery, am I no longer subject to HRR? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Once subject to the HRR, always subject. Therefore, even if you win the lottery, you cannot change status to permanent residence until you submit evidence that (1) The 2yr HRR has been waived. (2) You have served the 2yr HRR sentence. Q47:-Can I accept a tenure track university position under the premise that I will complete the first 18 months on a J-1 visa as practical training, then return to home country for 2 yrs., and then come back? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] I don't see why not. However, for you to come back, you must ensure that one of the following happens (1) Your employer is willing to wait for 2 yrs. and keep the position open and is willing to sponsor you for an H-1 visa for you to return to the USA. (2) You have applied for a waiver of the HRR (and you are reasonably certain to get it). Then you can have your employer sponsor you for an H-1 visa. If I was in your situation, I would pursue the second option. Try for a waiver while you are on the practical training and convert to the H-1 visa. Q48:-How likely is it that a philosophy graduate will be able to get a waiver by having a University tell the Department of Education they need his or her services and "having" the Department of Education apply to USIA? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] The University must demonstrate through extensive documentation that by hiring you, the U.S. will get a significant edge in terms of your contributions to the education field or the lack of your efforts would significantly impact the successful completion of a project of great interest to the Department of Education. Q49:-I have already been denied a waiver based on a "no objection" statement. Will it help me get a positive response to an application based on a "no objection" statement if I am able to demonstrate that a University is interested in hiring me? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] Your employer can write a supporting letter and make you the beneficiary of a petition with an interested U.S. Government agency. The interested U.S. Government agency can then sponsor you for a waiver. Q50:-Has anyone been refused a waiver by the INS after the USIA has made a favorable recommendation? Ans:-[From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil] I don't know of any such case. INS usually accepts the USIA's recommendation. Q51:-Can I work for a company of my home country in another country? Ans:-Not sufficient. ----------------------------------------------------------------- Law Offices of Rajiv S. Khanna 3440 N. Fairfax Drive, Suite D, Arlington, VA 22201 2120 L Sreet, N.W., Suite 210, Washington, D.C. 20037 Voice: (703) 908-4800 Xtn 110 rskhanna@immigration.com OR rskhanna@businesslaw.com