judithjosie

I’m sorry for the long post, but Id greatly appreciate it if you want to read this and help me!

Hello Everyone,

My name is Judith, I am Dutch and new to this forum. I have a complicated situation, so I hope you can help me out. I have an American fiancé, I met him in 2005, when I was an exchange student. We were both 17 at that time and I stayed in the U.S for a year on a J1 Student Visa. After I left to go back to The Netherlands again, we still dated and I came back in December 2006 for 2 weeks on a tourist visa. After that time, we were both busy with college and work, and unfortunately did not have the time and money to visit each other soon again. Luckily, we saw each other again after that long period of time, in July 2008, when I came to the U.S, again on a J1 student visa as I was going to complete a semester abroad at a University in Arizona. So before I started my semester there in August, I first went to Wisconsin in July, to visit my fiancé (at that time still boyfriend) for about 3 weeks. I studied in Arizona from August 2008 till December 2008 and in between I also traveled to visit my fiancé during my thanksgiving break. In December 2008, I went back to the Netherlands and then went to Asia to do my internship for 5 months. I came back to the Netherlands in June 2009 and luckily the next month, I had a long summer holiday so I could visit my fiancé for 8 weeks. So during this last summer we got engaged . Now I am back in the Netherlands, in my senior year of college and figuring out the best ways for us to be together. I am planning to graduate in June 2010 or September 2010. We were thinking about the K1 procedure or the K3 procedure, but do not know what would be the best to do and therefore we would like your advice.
There are some factors that influence the choice of choosing for the K1 or K3 in our case:

Unfortunately, I recently found out that I with my previous J1 visa, on which I came to Arizona, I have a Two-Year Foreign Residence Requirement. I am actually surprised about this, as I financed everything by myself. My J1 Visa ended in December 2008, so this would mean that I could not come back to the U.S on certain non-immigrant and immigrant visas till December 2010. I read that you could apply for a waiver, but how does that exactly go when I am in the Netherlands? Because so far, I only read stories about people who want a waiver for the 2 year rule and for example obtained a no objection letter, when they were already in the U.S.

In February till April, I do not have school and start again in April for my last 2 months. So I have 3 months off and wanted to visit my fiancé then. I wonder if this would be a good idea if we would have started the K1 procedure, even if it is not illegal to do so. If we want to start the K1 process, we would want to file in December 2009, as it could still take up a long while and as I graduate in June or September 2010, we think it would be the best to start in December. I read that you could visit your fiancé, while your K1 case is pending, but it will not guarantee you entry and may be risky at times. I wonder if it may be too risky, also because it is not a 1 or 2 week visit, but for 3 months. I want to do everything legally and have no intentions of staying. I have proof that I have ties to the Netherlands, I can for example show a return ticket and that I need to come back in order to graduate from college but have currently no job in the Netherlands as I am busy with school, I also wouldn’t have proof of a lease or anything, as I live with my parents now. Other than that, I have visited the U.S by then, 2 times on a J1 visa and 2 times on a tourist visa, one time for 2 weeks, the other time for 8 weeks. The first time on my J1 visa was in august 2005 for 11 months, so till June 2006. The second time 6 months when I went to Arizona, from July 2008 till December 2008. What would you advice me; do you think it is too risky to come visit my fiancé in the U.S for 3 months (max. of tourist visa), while our K1 case would be pending under my circumstances?

Otherwise, I thought of going to the U.S in February for 3 months on a tourist visa, marry my fiancé and start the k3 procedure and go back to the Netherlands and wait till I can come back. However, I read that the K3 procedure usually takes longer. Even though it would be worth the wait and time, we still hope we can be together as soon as possible after a long distance relationship of almost 5 years by then.

So what do you think what would be the best we can do?
• Start k1 around December and go the U.S for a 3 month visit under my circumstances and take the risk
• Start k1, do not take the risk and wait till I can come but not being able to see my fiancé for a long while
• Go to the U.S in February on a tourist visa for 3 months, marry my fiancé and come back to the Netherlands, with the chance of a longer wait
• And last, what should I do about the J1 2 year home residency rule? I think if we start the k3 process around march, it stay may take a while. I think there would also be a chance that I would get the K3 visa, only after December 2010 (when my J1 2 year rule ends). So if we choose for the K3, maybe the waiver would not even be necessary, as it still cost 215 dollars and may be a waste of money then.

I really do not know what would be best to do and therefore I am hoping you can help and advice us, me and my fiancé greatly appreciate it. Again, sorry for the long post. I’m looking forward to everyone’s reply.

- Judith

ian-mstm

You still apply for the waiver of the 2-year requirement. If granted, you can then reenter the US. If not granted, you must remain outside the US until the 2-year requirement is met.


You can not start the K-1 process until you are free to marry in the US... and you can't do that unless you have the J-1 waiver or finish the 2-year requirement.


You can't... unless you first get the waiver.


True... there is always an element of risk when seeking entry to the US.


You can not get a visa until you either get the J-1 waiver or finish the 2-year requirement.

Since you ask, my advice would be to file for the J-1 waiver immediately and see what happens. Everything else depends on whether the waiver is granted.

Ian

judithjosie

Thank you for your reply. So it is really not possible to start any procedure unless the 2 year requirement is either met or waived? I thought that you could start the procedure, but when the time comes that you would have the interview and could actually get the k1 visa, it needs to be waived or met. But from how I understand it now, we cannot start filing anything till either my 2 year rule is waived or met?

If I want my 2 year rule waived, I need a No Objection Statement from my home government right?
So if I understand it correctly, I need to obtain the NOS from my home government, forward that to the U.S Chief Of Mission, Consular Section in the Netherlands so that can forward it to the Waiver Review Division?
Does anyone have any experience in obtaining such a letter?

So if i would file for the J1 waiver now, I cannot do anything but wait untill the rule is waived?
Would it still be a good idea then to visit my fiance, as I wouldnt be able to start any procedure anyhow? If I would visit for those 3 months, do you think it would be a risk again if they see I asked for a J1 waiver? Also, the last time I visited was from beginning of July till end of August, so 8 weeks. If I come for 3 months, id stay for 12 weeks then. In total this would be 20 weeks in a year..Would it be too long?

Noorah101

Hi Judith, Welcome to BE.

I don't know much about the J-1 visa, but it is my belief that you can apply for a visa before your J-1 HRR expires, but the visa cannot be granted until after that. It takes about 6 to 8 months to process a K-1 visa nowadays. So, if you don't want to apply for a waiver, and just wait out the HRR time (which ends December 2010, right?) you will want to make sure your interview falls after that time, so they can grant the visa. Therefore, you'd probably want to get started on the K-1 around July 2010. That's IF you are allowed to start the process before the HRR is met, and IF you aren't applying for a waiver.

Also, I am not sure, but perhaps you cannot even visit the USA while waiting for the HRR to be met? If the HRR requires you to remain in your home country for 2 years, perhaps that also includes visiting the USA on the VWP? I don't know the answer, just something for you to look into.

Also, on the subject of K-3, don't bother with a K-3. If you are going to do a spouse visa instead of a fiance visa, stick with the CR-1 Immigrant Visa. The K-3 is no longer faster than the Immigrant Visa, and the K-3 has more expense and hassle involved in obtaining the green card. The Immigrant Visa allows you to become a US PR upon entry to the USA, so it's overall a much better visa for the same amount of time as a K-3. Be aware that you cannot start the Immigrant Visa until after you are married, so factor in the time it will take to get married.

Best Wishes,
Rene

judithjosie

Thanks Noorah for your reply.
I can come to the U.S on a tourist Visa, I also did this last summer, when the 2 HHR already applied to me. I can just not obtain certain types, including nonimmigrant visas, specifically H-1, L-1, K-1 and immigrant visas.
I just need to find out if I can start the procedure before the HRR is met..
I havent really looked into the CR-1, as we always thought we would do the k1 procedure.

hopefully there is someone who exactly knows if we can start any procedure before my HRR is met..or is/has been in a similar situation..

meauxna

That is correct.

That is not correct based on the many stories I've read. The petition can be filed and approved and even the visa application can begin. But if the 2 year HRR has not been met, they usually won't schedule the interview or will hold the case (occasionally) on 221(g) until it has been met. Couples who have timed it just right find their case moves just like anyone else's.

That's true.



From what I have read, you must add up all of those days of holiday etc OUTside your home country and put them back on your 2 year HRR. You don't need to simply be outside the US, you need to be inside your country.

If you google on anyone of of the J-1 terms used in this thread, you'll find the extensive pages on travel.state.gov that discuss how you get the waiver if you don't want to keep the obligation of your original J-1.

judithjosie

Oh that would be horrible if I have that is the case, as I went on a 5 month internship in Asia after I did my study abroad in Arizona and was only back for a 1.5 month in The Netherlands. When I came back from Asia, I was only back for a week and then visited my fiance for 8 weeks. If I would count the months in the Netherlands from when I came back from the U.S when I finished my study abroad (Dec. 2008), I would have only been in The Netherlands 3/4 months up till now..

I really need to try to get that waiver then. Already called today to some government agencies but they did not know what I was talking about...Tomorrow I will call the American Embassy in The Netherlands..hopefully they will know more.

jeffreyhy

Agreed. From 9 FAM 41.63 Notes, N1:

INA 212(e) prohibits certain exchange visitors from applying for an immigrant visa or for adjustment of status to that of a legal permanent resident or from changing status or receiving a visa as a temporary worker, nonimmigrant fiance or intracompany transferree until the applicant has established that he or she has resided and been physically present in the country of nationality or last permanent residence for an aggregate of at least two years following departure from the United States.

Regards, JEff

judithjosie

That doesn't sound good for me..
Does anyone have any experience in obtaining a J1 Visa Waiver? I wonder if it is difficult to get, as the goverment agencies I called do not know how they can help me with a possible 'No Objection Statement'..

Thank you all for replying, I appreciate it!

meauxna

You didn't google for the State Dept pages, did you?

judithjosie

I read these pages:
http://travel.state.gov/visa/temp/info/info_1296.html

I read about those '5 grounds for waivers' and found that the 'No Objection Statement' applies best to my situation..

I'm not completely sure how to obtain this 'No Objection Statement' .. I already called some government institutions in The Netherlands but they do not know how they could help me with this..

jeffreyhy

I think you should really be talking about a J1 HRR (Home Residency Requirement) waiver.

When you do your Google search the words 'visa waiver' are going to return all sorts of not relevant hits.

meauxna

Great, the instructions are all linked or listed there.

You don't need to contact government institutions in The Netherlands. The instructions say:
http://travel.state.gov/visa/temp/info/info_1288.html
4. If you are subject to the INA 212(e) and want a waiver of the two-year foreign residence requirement, there are FIVE GROUNDS FOR WAIVERS.

If a J-1 exchange visitor who is subject to but does not wish to comply with the two-year foreign residence requirement may apply for a waiver of that requirement under any one of the five applicable grounds for a waiver set forth in the INA 212(e). Choose the one that you qualify for or applies to your situation.

* No Objection Statement (NOS):

The EV's home country government issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the EV not returning to the home country to satisfy the INA 212(e) two-year foreign residence requirement and does not object to the possibility of the EV becoming a resident of the U.S. The NOS may also be issued by a designated ministry of the EV's home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division. The EV has the responsibility for obtaining a no objection statement from his/her home government.

http://travel.state.gov/pdf/J-1%20Waiver%20FAQs.pdf
The FAQs say:

No Objection Statements
Q. How do I request a "no objection" statement and where do I send it?

A. You should contact the consular section of your embassy in Washington, D.C., and request a "no objection" statement to be forwarded to the Department of State on your behalf. The Embassy must forward the "no objection" statement directly to the Waiver Review Division at the Department of State.