Do I need to apply for J1 visa waiver of the two-year home-country physical presence requirement? [closed]
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I applied a J-1 visa in 2013 as an exchange student to a US university. Unfortunately, the US embassy issued my visa too late so I decided not to come to US at that moment. In other words, I did not use that J-1 visa at all.
One year later, I came to US as a F-1 student. I will graduate soon and start my new job in a few months. I would like to apply for H1B visa and the company is willing to sponsor it.
In this case, do I need to apply for the J-1 waiver of the two-year home-country physical presence requirement from USCIS and my home country? It seems my case is a "corner case" because the DS3035 (the form for the waiver) form requires an entry date of the J-1 visa. Obviously I do not have those information because my J-1 visa is never used.
Edit: Sorry about posting this thread on this site. I thought that the "travel" site allowed any types of posts about visa questions. I should have read the guidelines before posting it. Is it possible to transfer this post to the expatriates site?
The reason I want to transfer this post is that Michael's answer is quite good and solves my "corner-case" problem. It might be useful for some people in the same situation.
Best Answer
If you never used the J-1 visa and never entered the US in J-1 status and never participated in the exchange program, then the two year residency requirement does not apply to you and you of course do not need a waiver for it.
In order to trigger the requirement, you actually have to enter the US in J-1 status and participate in an exchange program, not just receive a visa.
The regulations require, among other things, that you must have entered the US in J-1 status, or changed status to J-1, and participated in an exchange program. (22 CFR 41.63(a))
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How do you waive the 2 year rule?
Might You Qualify for Waiver of Two-Year Home-Residence Requirement?Can I stay in US while waiting for J-1 waiver?
J-1 Status Expiration While Waiting for Green Card If your J-1 status expires before an immigrant visa number becomes available, you will need to get a J-1 extension or apply to change your status to another nonimmigrant visa in order to continue staying in the U.S. while the green card application is pending.How long does it take to get a waiver for J-1 visa?
According to the State Department's website, the processing time for a no objection waiver is 6-8 weeks, once ALL documents have been submitted to the State Department.What does two-year rule does not apply mean?
However, it does mean that you can't do any of the following until you have returned to your home country for at least two years: You can't change your status to a nonimmigrant temporary worker (H) or receive an H visa. You can't change your status to a nonimmigrant intracompany transferee (L) or receive an L visa.How to waive Section 212 (e) - Two-Year Home Residency Rule
Sources: Stack Exchange - This article follows the attribution requirements of Stack Exchange and is licensed under CC BY-SA 3.0.
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