Austin, TX asked in Immigration Law for New York

Q: Change of status from J1 to H1B with 212E Waiver?

I am a J1 Research Scholar at a major public research university.

Both my J visa and DS2019 have endorsement from the Visa Officer that I am NOT subject to 212E the 2 year rule.

However, my skills are on my home country's skill list.

However, because the decision of Department of State is final in this matter, I formally applied for and was granted a waiver in Jan 2019. (I612 - Application to waive foreign residence requirements)

Meanwhile, an industrial employer had filed a H1B petition on my behalf in Apr 2018 and this petition has been hit with a RFE asking for the waiver document. I have submitted the waiver document to the legal team and I haven't heard back yet.

My question is, because the H1B was filed on Apr-2018 and I got the waiver from 212E only on Jan-2019 can USCIS deny my H1B petition saying the waiver hadn't been granted yet on the date of filing of H1B?

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2 Lawyer Answers
Kelli Y. Allen
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Kelli Y. Allen
Answered
  • Immigration Law Lawyer
  • Charlotte, NC

A: No, I would not anticipate that being an issue.

Leonard R. Boyer
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Answered
  • Immigration Law Lawyer
  • Clifton, NJ

A: If you have a company immigration attorney, these questions should be directed to your immigration attorney. Your questions should be directed to your company's immigration attorney, since the attorney is the person most familiar your case. But remember this attorney is the company attorney, not yours. Immigration is a very complex area of law. It is a lot more than merely filling out forms. You need to retain an immigration attorney to handle all immigration proceedings. This prevents errors that can sometimes prove costly and may even be irreversible. You should always seek to obtain the best attorney that you can afford and not let geographic restrictions stand in the way. Some immigration attorneys will charge a consultation fee, however those that do so, will give full credit if you retain their law firm. Do not let geographic restrictions prevent you from obtaining the best possible attorney. Pick the best lawyer you can find and remember one rule: a good lawyer is generally never cheap, and a cheap lawyer is generally never good so don't choose based on price. Good luck.

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