J Visa Waiver

Q: I came to the United States in 1998 from Sri Lanka on a J-1 visa for graduate study in biomedical sciences. I married a U.S. citizen and we have two children, both born in the United States. Now I have graduated. My attorney tells me that on my visa I can’t get a waiver, and I have no choice but to return to Sri Lanka for two years before I can apply for permanent residence in the United States. Is that true?

A: If you are subject to the 2-year home-residency requirement, which should be stated on your visa, then generally you would have to go back home. However, depending on the level of hardship, and other issues you may be eligible for a waiver under INA Section 212 (e), particularly since you have a husband and two U.S. kids. I recommend getting a second opinion from an experienced immigration attorney who can properly assess your waiver eligibility.

Q: I have been a permanent resident of the United States since 2004 based on asylum. I need to go to India, where my mom is sick. Do I need a travel document or re-entry permit to re-enter the United States?

A: Normally, in your situation a Refugee Travel Document is used for the purpose of traveling outside of the United States. However, I would not recommend going directly to India because it is the country from which you were seeking refuge. Your asylum claim could be perceived as fraudulent due to your trip to India. Also, this could create a problem for you during your naturalization process.

Q: I am interested in bringing someone as a domestic help from India. What kind of visa is required for that person, and what is the process? I know that people in the United Kingdom are able to do this. I am not aware of the process in the United States.

A: This is a difficult proposition mainly due to the strictness of the U.S. embassies in India. Possibly a J-1, or as an au pair, unless you want to file a PERM Labor Certification for that person to help them obtain a green card. Since this issue is quite complex, you will need to see an experienced immigration attorney who can properly assess the situation.

Q: I have a U.S. green card and plan to travel to Singapore in the summer to get married to a Singaporean citizen. How should I file for my wife’s visa so that there is the shortest delay between our wedding and her arrival in the United States?

A: This is never that simple. If you marry, then you must file the Petition for Alien Relative, but since you are a lawful permanent resident and not a U.S. citizen, after you marry and file this petition, your wife will have to wait abroad for her immigrant visa to become available. Even after approval of the petition, the Immigration Service will send your file to the National Visa Center to have your wife wait until new visas become available. In that category, the minimum estimated waiting time is four years. How long have you had your green card? If for five years, you could file for naturalization and then when you become a U.S. citizen your petition can be upgraded to that of an immediate relative of a U.S. citizen. Then after notifying the National Visa Center of your naturalization, your alien relative petition will be exempt from the wait and processed much quicker.

James E. Root, Esq., manages an exclusive immigration law practice with two offices in L.A. and Orange counties. (888) ROOT-LAW. www.RootLaw.com

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