Correct sequence and timing for filing the waiver of J-1 2-year home residence requirement vis a vis a green card petition is both tricky and critical.
Yesterday we met with a researcher from Australia who is completing a Ph.D. in engineering on a fellowship in J-1 visa status with a two-year home residence requirement. This researcher has fallen in love with a U.S. guy and she doesn’t want to go home. She knows that in order to obtain the green card based on marriage she must first obtain a waiver of the two-year home residence requirement if the couple wants to make their permanent home in the U.S. So the issue we discussed was the timing of filing for the waiver.
The researcher’s J-1 visa had expired and although she was in the process of extending her J-1 status for another year, the couple planned to marry next month. Our advice was that she would not be able to return to Australia and apply for a new J-1 visa after the wedding, simply because it would be impossible to demonstrate intent to return home on the J-1 with a U.S. citizen spouse. So we made the decision that she would return to Australia with her new DS-2019 within the next two weeks prior to the wedding.
With regard to the waiver, the rule of thumb is that once there is a decision on the waiver it is no longer possible to extend the J-1 visa status for the simple reason that the waiver application indicates to the U.S. government an intent not to return home. So we decided that once she had her new DS-2019 for another year and a new J-1 visa in her passport that we would then apply for the waiver giving us close to a full year to get an answer on our waiver application.
We also prepared for the worst if the waiver were to be denied and how they would handle two years apart while she fulfilled the two-year requirement in Australia. The researcher wanted to know if she could fulfill it in France, where she had been offered a post-doc. Unfortunately, she has to return to Australia to fulfill the two years. Time in Europe doesn’t count.