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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28209
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Thank you reply. I did have a follow-up question. So as per

Customer Question

FOR JUDITH Thank you for your reply. I did have a follow-up question. So as per your legal opinion, since J2 212e requirement only applies to H,L, and F, I am free to ask for an advisory opinion, or apply for a J waiver with no risk to my 'F' status. I think it makes a lot of sense but I did want to show you another legal opinion and just wanted your thoughts on it, if tat is ok. I do understand this is general feedback."You cannot change your status in the U.S. to an F-1 (or any other status) if you have a J-1 unless you have a waiver or met the two year requirement. The USCIS rules differ from those of the Department of State. The Department of State (which handles consular matters) is the government agency which precludes only H, L, and LPR status. USCIS precludes all changes of status, including F-1. So in the U.S., you would not be able to change to any other status holding a J-2. Just because the consulate allowed a new admission as an F-1 does not waive the J-2 requirements under 212(e).1. The only way you could get information regarding your ex-husband's waiver is if he agreed to sign off on a G-28 and request it by FOIA. You can attempt a FOIA on your own to see if you were included (as they may accidentally put his info in your file occasionally), but the government will not provide information from another person's case.2. You can apply for a waiver separately as a J-2 alone due to the divorce and argue the special circumstances which apply to you, but this is a discretionary type of matter.3. It has to be continuous "residence." This means you returned, and lived there in separate times. So to equal two years, the accumulated time would require actual residence. This means if, hypothetically you lived in India for 728 days, then you popped in at a later time to India for two days just to visit, they would not count that as a "residence.""
Submitted: 11 months ago.
Category: Immigration Law
Expert:  Judith replied 11 months ago.

Ah ha, you can appply for and be given an F1 visa stamp but a j1 with 2 year HHR has to go out to appy for the visa. That is where I confused you.

It is true if the consul gives you F1 visa stamp it does not waive the 212e requirement.

I totally agree with all other points made by the other attorney. I hope this helps clarity your situation.

And by the way, the DOS and USCIS has gotten more liberal in making discretionary waivers in cases involving divorces where the principal J1 visa holder has received a waiver.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Understand, it is my job to be honest and truthful about the law and sometimes the law does not give you the solution or options you want. Kindly give me a positive rating when you are done. If you feel I earned a BONUS, I am grateful. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Customer: replied 11 months ago.
Ok so you are saying that if I apply for a j waiver, there is in fact a risk (albeit a low one). So if I do get rejected, my f1 status could be at risk? Would I just get deported if that happens ?
For j waivers, have you seen similar cases where waivers have been granted or not granted ?
Customer: replied 11 months ago.
I am planning to get married in dec to a green card holder. And I am currently phd. Thus the push to get this sorted. I'm guessing I should sort this out before I get married ?
Expert:  Judith replied 11 months ago.

Did USCIS make a mistake and approve your COS to F1 while you were here?

Or did you go get the original F1 visa stamp at consulate?

You previously wrote:

"Since I have een on an F1 visa which I got without hiccups."

Judith

Customer: replied 10 months ago.
Hi Judith: Following is the time line :1 - Divorce was filed by spouse in June/July 2010.
2 - During this period I was on a J-2, since the U.S. court issued an order that stated J-2 cannot be withdrawn until the divorce is granted.
3 - In the meantime, I left the country in August 2010.
4 - Divorce was issue in January 2011 and J-2 withdrawn (date/month not known)
5 - My university in the U.S. issued an I-20 around August/september 2011
6 - Visa was issued/stamped by the home country consulate on October 2011
7 - Arrived/Entered the U.S. on F-1 status in January 2012.It is to be noted that the I-20 for F-1 was issued by the University while I was out go the U.S. and I reentered the U.S. on a F-1. No change of status was made while I was within the U.S.
Expert:  Judith replied 10 months ago.

What is the question? I note you are not satisfied with my answer and are stating facts which do not change the requirement that you need to get an F1 visa stamp and/or an advisory opinion; and or request your J waiver based on the divorce.

I thought that was clear.

Now I am perplexed about what you are asking.

Judith

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